State v. Rainsbarger

Decision Date01 March 1887
Citation31 N.W. 865,71 Iowa 746
PartiesTHE STATE v. RAINSBARGER
CourtIowa Supreme Court

Appeal from Marshall District Court.

THE defendant was convicted of the murder of one Enoch Johnson and sentenced to imprisonment in the penitentiary for life and from that judgment he appeals.

REVERSED.

C. E Albrook and Brown & Carney, for defendant.

A. J. Baker, Attorney-general, for the State.

OPINION

REED, J.

On the morning of the nineteenth of November, 1884, the dead body of Enoch Johnson was found on a public road near the village of Gifford, in Hardin county. The circumstances proven on the trial sustain the finding of the jury that his death was caused by injuries which had been inflicted on his person by another, and that the killing was felonious. There was also evidence which tended to prove that the crime was committed by this defendant and his brother, Frank Rainsbarger. But whether the evidence was sufficient to sustain the verdict of guilty against him, we will not determine on this appeal.

I. The state was permitted to examine the wife of Frank Rainsbarger as a witness on the trial, and her testimony tended to prove facts material to the case. An indictment was pending against her husband, in which he was also accused of the murder of Johnson, although he was not on trial at the time. The objection urged against the admission of her testimony was that, as it necessarily tended to prove that her husband was guilty of the crime for which defendant was being tried, she was not a competent witness. We deem it unnecessary to enter upon any discussion as to what the rule in such cases would be in the absence of statutory regulation; for the whole subject in this state is governed by statute. Section 3636 of the Code provides that "every human being of sufficient capacity to understand the obligation of an oath is a competent witness in all cases, both civil and criminal, except as herein otherwise declared." Sections 3641 and 3642 are as follows: "Neither the husband nor wife shall in any case be a witness against the other, except in a criminal prosecution for a crime committed one against the other, or in a civil action or proceeding one against the other. * * *" "Neither husband nor wife can be examined in any case as to any communication made by the one to the other while married, nor shall they, after the marriage relation ceases, be permitted to reveal in testimony any such communication made while the marriage subsisted." These are the only provisions relating to the subject.

Under section 3636, any person of sufficient capacity to understand the obligations of an oath is a competent witness in any case, unless he is included in some of the exceptions created by other provisions. The exception created by section 3641, with reference to witnesses in criminal cases, is that neither the husband nor wife can be examined as a witness against the other, except in a prosecution for a crime committed by the one against the other; and that created by section 3642 makes the husband and wife incompetent witnesses to prove communications made by one to the other during the existence of the marriage relation. Very clearly, we think, the witness is not included in either of these exceptions. Her husband was not on trial, and her testimony was not against him, and she was not examined as to any communication made by him to her.

II. The witness Mrs. Rainsbarger was asked by the district attorney whether she had heard a conversation between the defendant and the deceased a short time before the death of the latter in reference to what defendant was to do for deceased; and she answered that deceased asked defendant and her husband what they were going to do about helping him to get money and clothes to get ready for a trial which he was expecting, and that defendant answered that "he had nothing,--only his threshing-machine and team to help him, and they were mortgaged; and if he helped him he would have to go out and steal it; that he had stolen to keep the children from crying, and, if they were going to steal, they might just as well go to work and steal." The questions which elicited these answers were objected to by defendant's counsel. They also moved to exclude the answers after they were given, but the court overruled the objection and the motion. These rulings were erroneous. The testimony objected to did not tend to prove any fact material to the case. It was elicited as part of the evidence of the state in chief. It tended only to prove that defendant had been guilty of other crimes than the one charged in the indictment on which he was being tried, or that...

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