1. Homicide: first degree murder: corpus delicti: evidence. I. The accused struck John G. Runyan with his fist, but oné blow. This happened shortly before nine o’clock of May 7, 1914, and Runyan died, apparently from suffocation, about fifteen minutes after eleven 0 ’clock the same evening. Appellant eon-tends (1) that the evidence was not such as to warrant his conviction and (2) that there was no evidence of murder in the first degree; and, for this reason, the court *376erred in submitting to the jury the question as to whether he was guilty thereof.
Was death caused, or at least hastened, by a blow over the larnyx? At the autopsy, no external marks were discovered on the body, except ‘ ‘ a slight discoloration of the skin over the voice box and wind pipe”. An .autopsy was held and, among other things, Dr. Treynor testified:
“We cut down the larynx and found tissues of larynx discolored and bruised. Removed the larynx and found the bruises extended through the larynx, and there was injury to mucus lining, and blood clot engaged in mucus lining of larynx. The tissues surrounding larynx permeated with blood, fluid and air. In my opinion, Mr. Runyan’s death was due to oedema and emphysema of the larynx and tissues of the throat. Death would result from suffocation. (Edema and emphysema caused by contusion of tissues so that little capillary blood vessels were ruptured and would leave a bloody part of the fluid in tissues, producing watery condition. An entrance of air from larynx would infiltrate tissues with air; it would be a gradual accumulation of water and fluid. Death would not be immediate; time would depend on extent of contusions. If there were a great many small capillary blood vessels broken, the infiltration of blood into the tissues would be more rapid than if more limited. It would require considerable force to produce such condition, in my judgment. A thickening of the mitral valve of the heart was discovered, and this would somewhat impair its use. We found acute dilation of the right heart. There was a leaky condition of the right heart; between the right auricle and' ventricle there was regurgitation of blood from ventricle to auricle. ’ ’
The physician stated further that many die because of this condition and often quickly, and that, owing to this condition, a person would be likely' to die more quickly from suffocation. “Death from dilation of the heart leaves discol*377oration of the skin that you see in any condition of suffocation from non-aeration of the blood.”
The testimony of Dr. Hennessy was substantially the same, he adding that “the lungs seemed distended with air and of darker color than ordinarily” and that there was no external evidence of death from dilation of the heart. “Whenever there is cessation of circulation, the blood, not being oxygenized, turns purple, manifests itself in purple or bluish color on surface, the same in dilation as in strangulation. ’ ’
From this evidence, the jury might have inferred that death resulted from the application of force, as by a blow over the larynx. Was such a blow struck by the accused? A messenger boy had left his bicycle at the corner of a restaurant in Council Bluffs. Defendant came along with a jug and took the wheel with him to the other corner or beyond, when he was seen by the deceased, John Bunyan, who .stopped him, inquiring what he was going to do with the wheel. Defendant responded that he was taking it for fun, or for a joke, and was going to put it around the corner of the restaurant. About this time, several small boys came up. Bunyan asked one of them if it was his wheel, saying that he had stopped Sayles from taking it, when the latter repeated, in substance, that he had taken the wheel only as a joke. At- Bunyan’s direction, some of the boys notified the owner, and he came for the wheel. After some further talk, Sayles started ior home, saying that he would be back again, and returned, after a few minutes, with Lyons. Bunyan seems to have repeated the charge several times, and Sayles as often denied it. Sayles then started away, whereupon Bunyan asked him if he was scared. He returned again, when Bunyan asked him if he knew his brother Fred; and, as Sayles said he did, sent for him, When he came, Fred said he did not know Sayles. The latter remarked, “You can get acquainted with me,” and, removing his coat, struck deceased. A cigar fell from his mouth, and, as he stooped to get it, he staggered backward. Sayles then struck at Fred Bunyan, who dodged the blow, *378and then knocked him down, and, after being on him a short time, offered to let him np if he would behave himself. Defendant responded, “If you let me up, I will clean the whole Runyan family”, and denounced him with epithets. One witness testified that defendant struck deceased in the chest; five, merely that he struck the deceased, but did not describe where. After the trouble, deceased went to bed in the bunk house for train crews near the roundhouse of -a railway company, by which he was employed. He was next seen fifteen or twenty minutes after eleven o’clock in the evening, coming from the water cooler in the roundhouse,£ £ choking and pulling at his throat”, and he could not talk, and died in a few minutes.
From this evidence, the jury might have inferred that the only violence done deceased was the blow of defendant; that this was on the neck over the larynx; and that, by said blow, death was caused or hastened; and therefore, that the defendant was responsible for the death of the deceased. True, the boy Withrow testified that defendant struck deceased in the chest. A witness might easily be mistaken as to the place of contact, especially where the principals are in close proximity. Much necessarily depends upon relative positions and the matter of attention. The other five witnesses did not undertake to say where deceased was hit. The evidence fairly excludes the inference that he was injured subsequently. There was no mark on his person other than over Ms larynx, and there some violence, as a blow, had been applied. From this evidence, the jury might have inferred that defendant’s blow was on the neck, instead of chest, and caused death.
2. Criminal law: evidence: res gestae: threats: statements by accused. II. It will be recalled that, immediately after striking-deceased, defendant struck at Fred Runyan and was by the latter knocked down; and when defendant was on the ground, a policeman came up, who was asked on the witness stand, “What was he talking about?” and answered that, upon Ms arrival, Fred *379Runyan said to Sayles that, if he would behave himself, he might get up, to which Sayles replied, “If you let me up, I will clean the whole Runyan family.” Defendant moved to strike the answer as irrelevant and concerning a transaction had “between the witness and the defendant, and not the decedent in the case”. It was immediately connected with what had preceded and but a few seconds thereafter, and clearly was a part of the res gestae, tending to show the feeling he entertained towards deceased in what he had done. State v. Gainor, 84 Iowa 209; State v. Jones, 64 Iowa 349; 21 Cyc., 937.
3. Appeal and error: review: exclusion of question: necessity to show prejudice. III. One of the errors assigned relates to the examination of Dr. Hennessy:
“Q. You and Dr. Treynor and the coroner talked there about sending that brain to Omaha for fur- .. ther examination, did you? A. Yes. Q. Did y°u no^ advise and Dr. Treynor advise that that be sent? A. We thought it would be a good thing for them to get some fellow to examine that brain. Q. Advised that it be sent ? A. Yes. Q. What was your reason for having it examined further? (An objection as incompetent, immaterial, and irrelevant was sustained.) Q. Did you and Dr. Treynor have any given purpose in your suggesting that this brain be sent to Omaha, did you have any given purpose in doing that? (A like objection was sustained.)
“The Court: I don’t just see the force of that question.
“Mr. Chambers: I know, if your Honor please, I want to get further if I can, I think I am entitled to it, and I want to make the record.
“Q. Did you have any express purpose there, you and Dr. Treynor, in suggesting that this brain be sent to Omaha ? ’ ’
The same objection, with the addition that a conclusion merely was called for, was sustained. Both physicians had testified that the brain appeared to be normal, and the inquiry might well have been allowed, in testing the credibility of such testimony. But though advised that the court did not *380catch, the trend of the inquiry, counsel for defendant gave no indication of what he sought and has not in his brief claimed the object of the inquiry as above suggested. Moreover, the record contains not the slightest' intimation of the answer which might have been anticipated, and it is well settled'that, in these circumstances, error cannot be predicated on the ruling by which some kind of an answer merely was excluded. American Express Co. v. Des Moines National Bank, — -Iowa—(pending on rehearing).
4. Criminal law: evidence: hypothetical question: recital of facts: basis in evidence. IY. After explaining that regurgitation from the stomach might throw food and other matter therefrom to the mouth, and that, should the epiglottis (covering the larynx) fail to perform its function and the food or foreign matter fall back into the larynx, strangulati°n might be caused thereby, Dr. Bellinger waS asked:
“Q.. Now supposing a person has a leaky heart, where there is a thickening of the walls of the left ventricle, and some dilation of the heart, where the mitral valve is thick and defective, and suppose severe strangulation and choking from some foreign matter in the windpipe, such as might occur from food or acid from the stomach, what is the fact as to whether death might result to the person, arising from the defective condition of the heart, taken in connection with the strangulation ? ’ ’
This was objected to because of containing matter not shown in the testimony, — i. e., that the choking or strangulation was from some foreign matter in the windpipe, — and the objection sustained. The facts recited in a hypothetical question must be such as the evidence tends to establish. Pierson v. Chicago, G. W. R. Co., 116 Iowa 601. Those not having a basis of support in the testimony should be excluded; for, if retained, the answer would not be of any assistance in ascertaining the truth. From a recital of facts having such basis, an expert may state in what different ways, if there is more than one, the result might have happened. For instance, *381appellant might have inquired whether death might not, under .the facts disclosed, have been caused by some foreign matter in the larynx, but he could not assume that it was there, in the absence of any evidence so showing.. The ruling by which objection was sustained to the hypothetical question, as containing facts tending to support which there was no evidence, is approved.
5. Homicide: trial: submission of offenses first degree murder: insuffinciency of evidence to sustain: effect. V. Defendant excepted to the paragraphs of the charge submitting whether he was guilty of murder in the first degree, for that, as is contended, the evidence was insufficient to warrant such submission. That he struck deceased is undisputed. The repeated aceusations are shown to have angered him, and the refusal to accept his explanation may have aroused his resentment. He accused the deceased of'“walking up the street” with his wife, and threatened to “hit him so hard that scavengers would have to come down the next morning to get him”, or this in substance. Instead of remaining away from trouble upon going to his home, he returned to the controversy; and, when deceased’s brother denied ■ knowing him, remarked, “You can get acquainted with me”, and, laying off his coat, struck the deceased hard enough to cause him to stagger back, upon picking up his cigar. Even upon being knocked down and lying on the ground, he said to the brother of deceased, “If you let me up, I will clean the whole Runyan family.” From what he said, previous malice might have been inferred. His threat to take life preceded the killing long enough to permit of premeditation and deliberation. Though death is infrequently caused by a blow from the fist, it does happen sometimes, and from the fact that accused, prior to the killing, threatened death, in coarse language, returned to the quarrel after having departed, and death resulted from a stroke by him on the body, likely to cause serious injury, there was some room for the inference that the taking of life was with malice aforethought, deliberate, premeditated and with the intent *382to kill. The evidence, inasmuch as no weapon other than the fist was used, is not very persuasive, and might not have been thought sufficient to have sustained a conviction of such crime, had the jury so found. But there was some evidence bearing thereon, and the trial court was not bound, at the peril of injecting error into the record, to draw nice distinctions as to the tendency of and accurately weigh the testh mony as adduced and definitely ascertain in advance its sufficiency finally to sustain the charge of first degree murder. In other words, the particular offense of an accused in the commission of homicide depends so largely upon the intention and motive actuating him, both inferable only from his conduct and words, that often a careful analysis of all the evidence is necessary, in order to determine the particular offense or degree of offense of which there is sufficient evidence of guilt; and it would be casting too great a burden upon the trial court to exact in advance and in the hurry of the trial such analysis and definite determination, where there is some evidence, even though it may subsequently be found not enough to sustain conviction of one or more of the offenses or degrees of offense submitted. To allow the jury to weigh the evidence in these circumstances and discriminate between the offenses or degrees of offense, instead of the court’s first doing so, is not prejudicial to the defendant; for this merely permits them to take into account the tendency of the evidence beyond the offense of which they finally convict. The rule may be thus stated: If there is some evidence having that tendency, so that it cannot be said that the record contains no evidence having a tendency to prove the higher offense, and there has been a conviction of a lower degree, or of one of the included crimes, then the submission of the issue as to the guilt of the higher offense, as murder in the first degree, ought not to be denounced as error, even though, had there been a verdict of guilty thereof, it would not have been allowed to stand. State v. Baker, 143 Iowa 224. The case differs from those declaring erroneous the submission of an *383issue not included in the indictment, as State v. Andrews, 84 Iowa 88, and the like; for here the issue presented is raised with some evidence to sustain the charge; whereas, in that class of eases, attention of the jury is diverted to an issue not involved in the record, and having more or less influence on those directly involved. There was no prejudicial error in submitting the issue as to guilt of murder in the first degree, though we should have been quite as well, if not better, satisfied had this not been done.
6. Homicide: judgment: murder: indeterminate sentenc: correction on appeal. VI. The defendant was found guilty of murder in the second degree and sentenced to ■ the penitentiary at Ft. Madison “at hard labor for an indeterminate period, as provided by law for the crime of murder in the second degree. But there is no-provision ^he indeterminate sentence law for the punishment of the crime of murder; for murder is expressly excepted from the operation thereof. Section 5718-al3, Code Sup., 1913. The penalty prescribed for murder in the second degree is “imprisonment in the penitentiary for life, or for a term not less than ten years”.; and the sentence should have been for a definite period. It was merely to the penitentiary, without the term’s being defined.
Under the statute, this might not have been for less than ten years, and the circumstances of the homicide are such that he should not have been sentenced for a longer period. We fix that period of imprisonment in pursuance of. Section 5462 of the Code, authorizing this court to render the judgment the district court should have rendered. With this modification, defining the term of imprisonment as ten years, the judgment is — Affirmed.
Deemer, Gaynor and Salinger, JJ., concur.