State v. Cross
| Decision Date | 19 December 1885 |
| Citation | 26 N.W. 62,68 Iowa 180 |
| Parties | THE STATE v. CROSS |
| Court | Iowa Supreme Court |
Appeal from Mills District Court.
IN December, 1883, the defendant, Dr. E. D. Cross, was indicted by the grand jury of Pottawattamie county for the crime of murder in the first degree. A change of venue was taken to Mills county, and a trial had, which resulted in a conviction and sentence of death. The defendant appeals.
REVERSED.
N. M Hubbard, Wright, Baldwin & Haldane and John Y. Stone, for appellant.
A. J Baker, Attorney-general, Sapp & Pusey and D. B. Dailey, for the State.
On the twenty-fourth day September, 1883, about six o'clock in the evening, Dr. A. B. McKune, a resident of Council Bluffs, was killed upon one of the streets of that city, within sight of several persons, by a revolver held in the hand of the defendant. The evidence tended to show that the deceased and the defendant had for some time been enemies. That the defendant purposely killed the deceased we do not understand has ever been denied by him, but he contends that it was in self-defense. A large number of errors have been assigned upon the admission of evidence offered by the state, and upon the exclusion of evidence offered by the defendant, and upon instructions given. It is also contended that the evidence that the homicide was justifiable- was such that the court should have instructed the jury peremptorily to render a verdict for the defendant.
I. As to the evidence introduced to show that the homicide was justifiable, we have to say that, upon a separate reading, we have all reached the conclusion that the defense is not so clearly made out that a peremptory instruction in the defendant's behalf upon that point would have been proper.
II. The defendant, while a witness upon the stand in his own behalf, was asked by his counsel a question, in these words: "State whether or not you were ever called before the grand jury of Pottawattamie county, in December, 1880, to give testimony as to a crime alleged to have been committed by Dr. McKune?" This question was objected to by the state as immaterial, and the objection was sustained. The defendant contends that the question should have been allowed. The purpose of asking the question does not appear very clearly upon its face; but it is claimed that the defendant, if he had been allowed to testify upon the subject, would have shown, not only that he was called before the grand jury, but that he testified, and that his testimony was unfavorable to the deceased, and that the jury would have been justified in inferring that the deceased had a motive for attacking the defendant and putting his life in peril, and that, if he had the motive, he did attack him and put his life in peril. But, in our opinion, it would have been going too far to have admitted such evidence. In the first place, we are not able to say that, where a person is charged with crime, there is a natural presumption that he cherishes a hostility against those who testified honestly against him before the grand jury. In the second place, if we should hold that there is such presumption, we could not presume that he would allow himself to be so far influenced by his hostility that he would put himself in such attitude toward the witness that the witness would be justified in killing him. It is true that where a homicide is committed it is allowable for the state, after proving the homicide, to prove, in connection with other facts tending to inculpate the defendant, that he had a motive to commit it, as bearing upon the question of intent; but the fact that a homicide had been committed could not be proven by evidence of a mere motive. Perhaps the defendant's counsel would concede that the mere existence of a motive on the part of deceased to attack the defendant would not tend to prove that he did. But it is contended that there was other evidence tending to show that the deceased attacked the defendant, and the position of the defendant's counsel, if we understand them, is that the evidence in question would have tended to show the character and extent of the hostility of the deceased, and so would have tended to show the character of the attack. This position of the defendant's counsel may, we think, be met substantially by what we have already said. Truthful and honest testimony, given before a grand jury, and especially if given compulsorily, ought not to create hostility towards the witness on the part of the person charged; and we should assume quite too much if we should hold that the fact of the giving of such testimony was admissible, even for the purpose of showing that a given attack on the witness by the person charged was of a more dangerous character than it otherwise would appear to be. State v. Sullivan, 51 Iowa 142, 50 N.W. 572. In our opinion, the evidence was properly excluded.
III. The wife of the defendant was examined as a witness in his behalf. For the purpose of showing that the defendant, when he left his house, just before he killed the deceased, did not start out with the purpose of committing murder, the defendant's counsel asked the witness a question in these words: "What statement did the doctor make to you at the time as to where he was going, and what was he going for?" The state objected to the question, and the objection was sustained. It is contended by the defendant's counsel that the statement was a part of the res gestae, and that the evidence of it should have been allowed. The defendant, when he went out, took a loaded revolver with him, and walked rather slowly along the street where deceased usually walked at that hour in going from his place of business to his house. It was claimed by the state that he went out for the purpose of seeking a hostile meeting with the deceased. To rebut the evidence relied upon by the state, that the defendant was seeking a hostile meeting, he offered to prove by his wife the statement in question. That it was allowable for the defendant to show, if he could, that he started out on an innocent errand, there can be no doubt whatever, nor do we understand that the counsel for the state claim that there is. Their proposition is that the statement is not a part of the res gestae; but, in our opinion, their position cannot be sustained. Where an act is done, and the actor at the time of the act makes a statement explanatory of it, the statement is admissible as a part of the res gestae, unless the circumstances are such as to preclude the supposition that the statement was free from sinister motives. Where a person starts out of his house with a loaded revolver in his pocket, and proceeds directly to a fatal encounter with an enemy, there is some ground for suspecting his motives in any statement which he may make to his wife showing that he is bound on an innocent errand. It is hardly to be supposed, if he meditated murder, that he would disclose such fact to his wife, but would account to her for his contemplated absence upon a different ground. But there is a natural presumption in favor of truth, as there is in favor of innocence, and in our opinion there is nothing in this case that would justify us in saying that the defendant's statement, being strictly contemporaneous with the act in question, and explanatory of it, did not constitute a part of the res gestae. We do not say that the evidence if admitted would have been of much weight, or would probably have been so regarded by the jury, but we cannot sanction the exclusion of any evidence to which the defendant was entitled.
IV. The defendant introduced as a witness one Mrs. Sarah Brooks, and proved by her that she met Dr. McKune just before the fatal encounter; that she was acquainted with him, but did not speak to him. The defendant then offered to prove by her that there was a scowl on Dr. McKune's face, and that his looks were angry. The state objected to the evidence, and the objection was sustained. The object of the offered evidence was to show Dr. McKune's state of mind just before the encounter, for the purpose of raising the inference that he put the defendant in danger, and justified him in killing the deceased in self-defense. To justify a person assailed in killing his assailant, there must be on the part of the assailed a reasonable apprehension of loss of life, or of great bodily harm. The difficult question of fact, if any, in this case was to determine whether the deceased or the defendant was the assailant; and, if the former, whether there was such a reasonable apprehension on the part of the latter as made the homicide excusable. The evidence shows pretty clearly that, just prior to the fatal shot, the deceased and defendant were engaged in a fight with their fists and hands. As evidence that the deceased was the assailant, the defendant relies upon what seems to be the undisputed fact, that they were walking in the same direction, and the deceased overtook the defendant. He also relies upon the fact that, after the encounter, the mark of a blow was discovered upon his head behind the ear. But there is some evidence that, when first seen, they were standing very near each other in conversation; and it is undisputed that the deceased was wholly unarmed, and the affray occurred in daylight, on one of the frequented streets of Council Bluffs, and when five or six or more persons were in sight. There was considerable evidence as to the relative position of the parties during the fight which preceded the shot, but it is by no means clear that the deceased was the assailant, or, if so, that the defendant had a reasonable apprehension of a loss of life, or of great bodily harm.
To aid him in his defense, he undertook to show facts which preceded the fatal meeting....
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