Kintzinger, C. J.,
The defendant, a. married man, about 45 years of age, was charged with murdering his wife on October 5, 1934. On October 22, 1934, after having been duly arraigned, and being present in court and represented by counsel, the defendant entered a plea of guilty of the crime charged in the indictment. Thereupon, the court as required by law, heard the evidence of witnesses for the purpose of determining the degree of defendant’s guilt and fixing the penalty. After hearing the evidence, and being fully advised in the premises, the court, on October 22, 1934, determined that the defendant was guilty of murder in the first degree, and on the same day entered an order fixing the 26th day of October, 1934, as the time for pronouncing’ sentence. Pursuant to such order, the court, on October 26, 1934, entered judgment upon defendant’s plea of guilt, and sentenced him to death thereunder, as provided by law. From this judgment, the defendant appeals.
Appellant contends that the court erred in imposing the death penalty, instead of life imprisonment, upon the ground that the facts did not warrant the maximum penalty, because the act of killing* was shown to have been sudden and impulsive and not of a deliberate and premeditated nature. The evidence submitted to the court disclosed substantially the following facts:
The defendant and the deceased, Florence Breeding, were husband and wife, and had one daughter, Bernice Breeding, about 18 years of age. He and his wife had marital troubles for over a year prior to her death. The evidence fairly tends to show that defendant’s misconduct towards his wife and daughter was the sole cause of their domestic trouble. It also tends to show that defendant never had any regular employment; that he contributed very little toward the support of his wife and daughter; and that his own keep was mainly provided from the earnings of his wife. A divorce action had been discussed be
tween the defendant and his wife long before it was commenced. On October 3, 1934, an action for a divorce was commenced against him, and he accepted service of the original notice therein on the same day. On the following day, he moved ont of the home.
On the evening of October 5, 1934, he returned to the house for the purpose of talking to his wife about settling their trouble. Finding no one there on his arrival, he waited around until about 10 o’clock, when his wife and daughter returned. He then talked to his wife for about five minutes regarding her intentions about going through with the divorce, and was advised that she would. He thereupon went to a cigar store uptown, where he sometimes did janitor work, for the purpose of procuring a gun which he knew was in the .store. After remaining there for nearly an hour, he secured the revolver and left the store shortly after 11 p. m. The clerk in charge of the cigar store said that while the defendant was there, he sat around, talked to him about a football game, and was engaged in a general conversation with him before he left the store. On leaving the store, the defendant said to the clerk: “Don’t be surprised if you hear anything before morning.”
After leaving the cigar store, he returned to Mrs. Breeding’s home. She and her daughter had just prepared for bed when the defendant knocked at the door. His daughter testified that: ‘ ‘ Her mother asked him why he came at that time of night. It was after eleven o’clock and he started in swearing, * * * she screamed, and he started * # * shooting at her.” He fired five shots, one of which entered her temple, killing her instantly. From there he fled into the country, and a few hours later telephoned the officers to come and get him. Before they arrived, he returned to the city and surrendered himself at the county jail.
-After his arrest, the defendant freely admitted the killing and told the officers he was willing to be hanged. The defendant pleaded guilty to the crime of murder in the first degree. It then became the court’s duty to hear the evidence. This was done.'
It is not claimed that defendant was not guilty of murder in the first degree because he pleaded guilty to the offense charged in the indictment. It is conceded that he was guilty of murder in the first degree, but it is claimed that under the facts he should
not have received the extreme penalty, beeause'the act committed was sudden and impulsive and not of a deliberate and premeditated nature.
In the first place, the concession that he was guilty of murder in the first degree necessarily presumes that the act was deliberate and premeditated, because these are necessary elements in the crime of murder in the first degree. Section 12911, Code of 1931. In the second place the court determined from the evidence submitted that he was guilty of murder in the first degree, and that it thereupon became the court’s duty to fix the penalty.
We cannot reverse except for errors committed by the trial court. No error was committed, unless it be that the court abused its discretion in imposing the deáth penalty. The penalty for a conviction of murder in the first degree is either life imprisonment or death. In this action it was the province of the trial court to impose either. After hearing the evidence, the court imposed the maximum penalty, and its judgment cannot be set aside except for error committed, or for a clear abuse of the court’s discretion in imposing the maximum penalty.
The defendant was arraigned and pleaded guilty. Until this plea was entered and until after the judgment was rendered thereon, not a single error appears in the record. The only possible reason that can be urged for setting aside or reducing the sentence is an abuse of the court’s discretion in imposing the maximum penalty. If there was no abuse of such discretion, the penalty should stand. State of Iowa v. Tracy, 219 Iowa 1412, 1419, 261 N. W. 527, 531, and eases cited therein. In that case, we said:
“ If it does not clearly appear that its discretion was abused, this court should not disturb the judgment. The penalty for the commission of murder in the first degree has been fixed by the legislature. It is not our duty to legislate, neither have we the power of clemency invested in the chief executive. After a defendant is found guilty of murder in the first degree, we should let the statutory penalty fall.”
In this case as in that, the trial court, under a plea of guilty, was required to fix the sentence. This was done and the sentence was imposed as prescribed by the legislature.
The defense of insanity was not pleaded, there was no proof
of any facts showing justification, and no circumstances were shown in any manner mitigating the act committed. There is no evidence of any mental incapacity of defendant at the time; on the contrary, the evidence tends to show that at and during the time he was securing the revolver, he was apparently deliberating upon and contemplating the murder. The evidence also tends to show that he appeared to be “perfectly normal” during the time he was at the cigar store, just preceding the killing.
While we realize the enormity of the punishment inflicted, we also appreciate the gravity of the offense committed.
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Kintzinger, C. J.,
The defendant, a. married man, about 45 years of age, was charged with murdering his wife on October 5, 1934. On October 22, 1934, after having been duly arraigned, and being present in court and represented by counsel, the defendant entered a plea of guilty of the crime charged in the indictment. Thereupon, the court as required by law, heard the evidence of witnesses for the purpose of determining the degree of defendant’s guilt and fixing the penalty. After hearing the evidence, and being fully advised in the premises, the court, on October 22, 1934, determined that the defendant was guilty of murder in the first degree, and on the same day entered an order fixing the 26th day of October, 1934, as the time for pronouncing’ sentence. Pursuant to such order, the court, on October 26, 1934, entered judgment upon defendant’s plea of guilt, and sentenced him to death thereunder, as provided by law. From this judgment, the defendant appeals.
Appellant contends that the court erred in imposing the death penalty, instead of life imprisonment, upon the ground that the facts did not warrant the maximum penalty, because the act of killing* was shown to have been sudden and impulsive and not of a deliberate and premeditated nature. The evidence submitted to the court disclosed substantially the following facts:
The defendant and the deceased, Florence Breeding, were husband and wife, and had one daughter, Bernice Breeding, about 18 years of age. He and his wife had marital troubles for over a year prior to her death. The evidence fairly tends to show that defendant’s misconduct towards his wife and daughter was the sole cause of their domestic trouble. It also tends to show that defendant never had any regular employment; that he contributed very little toward the support of his wife and daughter; and that his own keep was mainly provided from the earnings of his wife. A divorce action had been discussed be
tween the defendant and his wife long before it was commenced. On October 3, 1934, an action for a divorce was commenced against him, and he accepted service of the original notice therein on the same day. On the following day, he moved ont of the home.
On the evening of October 5, 1934, he returned to the house for the purpose of talking to his wife about settling their trouble. Finding no one there on his arrival, he waited around until about 10 o’clock, when his wife and daughter returned. He then talked to his wife for about five minutes regarding her intentions about going through with the divorce, and was advised that she would. He thereupon went to a cigar store uptown, where he sometimes did janitor work, for the purpose of procuring a gun which he knew was in the .store. After remaining there for nearly an hour, he secured the revolver and left the store shortly after 11 p. m. The clerk in charge of the cigar store said that while the defendant was there, he sat around, talked to him about a football game, and was engaged in a general conversation with him before he left the store. On leaving the store, the defendant said to the clerk: “Don’t be surprised if you hear anything before morning.”
After leaving the cigar store, he returned to Mrs. Breeding’s home. She and her daughter had just prepared for bed when the defendant knocked at the door. His daughter testified that: ‘ ‘ Her mother asked him why he came at that time of night. It was after eleven o’clock and he started in swearing, * * * she screamed, and he started * # * shooting at her.” He fired five shots, one of which entered her temple, killing her instantly. From there he fled into the country, and a few hours later telephoned the officers to come and get him. Before they arrived, he returned to the city and surrendered himself at the county jail.
-After his arrest, the defendant freely admitted the killing and told the officers he was willing to be hanged. The defendant pleaded guilty to the crime of murder in the first degree. It then became the court’s duty to hear the evidence. This was done.'
It is not claimed that defendant was not guilty of murder in the first degree because he pleaded guilty to the offense charged in the indictment. It is conceded that he was guilty of murder in the first degree, but it is claimed that under the facts he should
not have received the extreme penalty, beeause'the act committed was sudden and impulsive and not of a deliberate and premeditated nature.
In the first place, the concession that he was guilty of murder in the first degree necessarily presumes that the act was deliberate and premeditated, because these are necessary elements in the crime of murder in the first degree. Section 12911, Code of 1931. In the second place the court determined from the evidence submitted that he was guilty of murder in the first degree, and that it thereupon became the court’s duty to fix the penalty.
We cannot reverse except for errors committed by the trial court. No error was committed, unless it be that the court abused its discretion in imposing the deáth penalty. The penalty for a conviction of murder in the first degree is either life imprisonment or death. In this action it was the province of the trial court to impose either. After hearing the evidence, the court imposed the maximum penalty, and its judgment cannot be set aside except for error committed, or for a clear abuse of the court’s discretion in imposing the maximum penalty.
The defendant was arraigned and pleaded guilty. Until this plea was entered and until after the judgment was rendered thereon, not a single error appears in the record. The only possible reason that can be urged for setting aside or reducing the sentence is an abuse of the court’s discretion in imposing the maximum penalty. If there was no abuse of such discretion, the penalty should stand. State of Iowa v. Tracy, 219 Iowa 1412, 1419, 261 N. W. 527, 531, and eases cited therein. In that case, we said:
“ If it does not clearly appear that its discretion was abused, this court should not disturb the judgment. The penalty for the commission of murder in the first degree has been fixed by the legislature. It is not our duty to legislate, neither have we the power of clemency invested in the chief executive. After a defendant is found guilty of murder in the first degree, we should let the statutory penalty fall.”
In this case as in that, the trial court, under a plea of guilty, was required to fix the sentence. This was done and the sentence was imposed as prescribed by the legislature.
The defense of insanity was not pleaded, there was no proof
of any facts showing justification, and no circumstances were shown in any manner mitigating the act committed. There is no evidence of any mental incapacity of defendant at the time; on the contrary, the evidence tends to show that at and during the time he was securing the revolver, he was apparently deliberating upon and contemplating the murder. The evidence also tends to show that he appeared to be “perfectly normal” during the time he was at the cigar store, just preceding the killing.
While we realize the enormity of the punishment inflicted, we also appreciate the gravity of the offense committed. We are conscious of the importance of this action and have given it deep and serious consideration, commensurate therewith.
The dissenting opinion filed in this case assumes an imaginary situation not sustained by the record. It is based almost wholly upon the following propositions: (1) that the defendant did not have a fair trial before pleading guilty; and (2) that he was not given sufficient time to make a proper showing after his plea of guilty was entered.
The record shows that the defendant had the benefit of counsel. The fact that he pleaded guilty in the presence of and with the consent of his counsel, instead of standing trial, does not in any manner show that he did not have a fair trial. There is not one word in the record showing that the defendant or his counsel ever made any complaint of the action of the court either in receiving the defendant’s plea of guilty, or in hearing the testimony before imposing sentence, in the manner disclosed by the record.
The defendant appeared with counsel at the time the evidence was taken. There was no request by him or his counsel for a postponement of that hearing for the purpose of enabling him to produce additional evidence in justification or mitigation of the offense committed. Nor is there any claim that any further investigation by the defendant would have disclosed additional facts,-which would in any manner warrant a modification of the sentence imposed.
The record in this case fairly warranted the court in finding there was a deliberate and premeditated intent on the part of defendant to kill decedent. The lower court, after hearing the evidence, determined that he was guilty of murder in the first degree and imposed the death penalty. It is our finding, under
the record, that appellant has failed to show such an abuse of the court’s discretion in imposing the death penalty as to warrant a modification.
Our conclusion in this case is controlled by the rule announced in State v. Tracy, hereinabove referred to, and cases therein cited. The reasons for the rule are fully discussed in that case, and a further consideration of them is deemed unnecessary. We find no error or abuse of the lower court’s discretion in entering the sentence imposed. The judgment of the lower court is, therefore, hereby affirmed. — Affirmed.
Albert, Anderson, Donegan, Parsons, Powers, and Hamilton, JJ., concur.
Bichards and Mitchell, JJ., dissent.