Miller v. Dayton

• Decision Date: 15 December 1881
• Citation: 57 Iowa 423,10 N.W. 814
• Parties: MILLER, ADM'X, ETC., v. DAYTON.
• Court: Iowa Supreme Court

57 Iowa 423

10 N.W. 814

MILLER, ADM'X, ETC.,

v.DAYTON.

Supreme Court of Iowa.

Filed December 15, 1881.

Appeal from Jefferson district court.

The plaintiff, as administratrix of the estate of W. L. Miller, deceased, brings this action to recover of the defendant damages for the alleged wilfully and maliciously killing the said W. L. Miller. There was a jury trial, resulting in a verdict and judgment for the plaintiff in the sum of $5,050. The defendant appeals. The material facts are stated in the opinion.McJunkin & Henderson, for appellant.

E. W. Stone and Wilson & Kellogg, for appellee.

DAY, J.

1. The deceased was killed by a shot from a gun while walking along the highway with the plaintiff, his wife, on the evening of the twenty-ninth of August, 1877. The person who fired the fatal shot was concealed on the opposite side of the fence, on the north side of the road, behind a fallen tree top, covered with dried leaves, and affording a complete protection from sight from the road. The surrounding trees and brush were so situated that in a very few steps the party could be completely out of sight from the fence. No one saw any person do the shooting. The evidence connecting the defendant with the offence is altogether circumstantial, some of the circumstances being testified to by the plaintiff herself. The defendant did not testify.

The court instructed the jury as follows: “Under the laws of this state a defendant, in a civil or criminal case, may be a witness in his own behalf. Now the court instructs you that if you find there are material and important circumstances appearing in evidence against the defendant, and you further find that the defendant has not satisfactorily explained said circumstances by other evidence, then the fact that he was not a witness in his own behalf may be considered in evidence against him, and you are to give it just such weight as it is entitled to when considered with the other evidence in the case.” The defendant insists that this instruction is erroneous, because the defendant was not a competent witness under the provisions of section 3639 of the Code. This section provides that no party to an action or proceeding shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the commencement of such examination deceased, against the executor or administrator of such deceased person. But this prohibition shall not extend to any transaction or communication as to which such executor or administrator shall be examined in his own behalf, or as to which the testimony of such deceased person shall be given in evidence. The evident purpose of this action is to close, by the law, the mouth of one party to a transaction or communication where the mouth of the other party thereto has been closed by death. If any transaction as contemplated in this section occurred between the defendant and the decsased, it was the shooting of deceased. No one saw that transaction. No one gave direct testimony respecting it. It may be that under section 3639 of the Code it would not be competent for the defendant to testify that he did not shoot the deceased. But the guilt of the defendant was sought to be shown, not by direct evidence that he shot deceased, but by proof of a number of distinct facts and circumstances, occurring both before and after the homicide, having nothing of the character of a personal transaction between the defendant and deceased. As to the existence and true character of these facts and circumstances the defendant is not rendered incompetent to testify by the provisions of section 3639 of the Code. It is evident that the court had reference to these facts and circumstances in the instruction under consideration. The court says: “If you find there are material and important transactions appearing in evidence against defendant, and that the defendant has not satisfactorily explained said circumstances by other evidence, then the fact that he was not a witness in his own behalf may be considered in evidence against him.” The instruction, as limited and qualified, is, we think, not erroneous.

2. The defendant was indicted and tried for the murder of deceased. Upon the trial of the civil action the plaintiff introduced as a witness one Kelly, who testified that the defendant told him that Martha Dayton, his sister-in-law, testified upon the criminal trial that she saw the defendant's gun in the pantry, in his house, at the time she heard the report of the discharge which killed deceased. Respecting this the court instructed the jury as follows: “If you find from the evidence that the defendant had knowledge of the facts that said Martha Dayton would testify to, that at the time the gun was fired at the place of the homicide the defendant's gun was in his house, and the defendant did not have it; and if the defendant has not introduced said witness, nor accounted for her absence,--then you may consider such fact against the defendant, and you should give such circumstance just such weight as you think it entitled to, when considered with the other evidence in the case.” If the defendant knew that Martha Dayton knew where his gun was when the homicide was committed, and such knowledge was not equally in the possession of the plaintiff, then the jury might consider the fact that Martha Dayton was not introduced as a witness, as a circumstance against the defendant; for the jury would have been authorized to infer that if the gun had been in the house, the defendant would have proved it, and that proof of the place in which the gun was would have been prejudicial to him. See the following authorities upon this point: Parks v. Richardson, 4 B. Mon. 276;State v. Cleaves, 59 Me. 298; Gordon v. The People, 33 N. Y. 501, (508;)State v. Rozier, 8 N. W. REP. 345.

There is an essential difference, however, between the defendant knowing that Martha Dayton knew where the gun was at the time of the homicide, and his knowing that she would testify the gun was in his house at that time. The gun may not have been in the defendant's house, and still the defendant may have been innocent. Or the gun may have been in the defendant's house, and Martha Dayton may have had no knowledge...