State v. Archer

• Decision Date: 06 December 1887
• Citation: 35 N.W. 241,73 Iowa 320
• Parties: STATE v. ARCHER.
• Court: Iowa Supreme Court

73 Iowa 320

35 N.W. 241

STATE

v.ARCHER.

Supreme Court of Iowa.

December 6, 1887.

Appeal from district court, Appanoose county; C. W. LEGGETT, Judge.

The defendant was convicted of the crime of manslaughter in the killing of one George Woods. He was sentenced to imprisonment in the penitentiary for the period of four years, and he appeals.Tannehill & Fee, for appellant.

A. J. Baker, Atty. Gen., for the State.

ROTHROCK, J.

1. The indictment charged the defendant with the crime of murder in the first degree. A former trial of the case resulted in a conviction for manslaughter. An appeal was taken to this court, and the judgment was reversed for what we regarded as error in the instructions given by the court to the jury upon the law of self-defense as applicable to the evidence in the case. See 69 Iowa, 420, 29 N. W. Rep. 333. A like verdict and judgment resulted on the second trial. The defendant claims that numerous errors of law occurred upon the last trial, which alleged errors we will proceed to consider. It is not denied that the defendant took the life of George Woods by shooting him with a shot-gun. We say this fact is not denied. It is true the defendant pleaded not guilty, and it was necessary for the state to prove the homicide as charged. But the tragedy took place in the presence of several witnesses, and the defendant was a witness in his own behalf, and all concurred in the statement that the defendant killed Woods. The court instructed the jury that the killing was conceded. Counsel for the defendant claim that this instruction was erroneous. We think otherwise. The whole record shows that there was no contest nor dispute as to the fact of the killing, and it is always proper for the court to instruct the jury as to the effect of every fact about which there is no controversy.

2. The facts attending the killing were quite fully set forth on the former appeal. It is unnecessary to repeat them here. It is enough to say that two daughters of the deceased were eye-witnesses of the homicide. One of these daughters was at that time about 11 years of age. The last trial occurred in January, 1887, at which time she stated that she was 13 years old. In her examination in chief she stated that she saw the defendant shoot her father. She detailed the acts of her father and the defendant immediately preceding the fatal shot. She did not detail any of the facts which led to the altercation between the parties. The fact is, however, as will be seen by an examination of the former opinion of this court in this case, the killing arose out of an attempt by the defendant to go through an inclosed pasture belonging to the deceased. On the cross-examination of the witness, she stated that her sister told Archer, the defendant, to stay out of the pasture. Counsel then propounded several questions to the witness, by which it was sought to be shown that she had testified on the former trial that her sister did not forbid the defendant from going into the pasture, and that witness did not know where her sister was when the defendant entered the pasture. The witness gave no answer to these questions, and it is stated in the abstract that the witness refused to answer some 34 other questions propounded to her in relation to her testimony on the former trial, said questions being for the purpose of laying the foundation to impeach her. Thereupon, counsel for the defendant moved the court to strike out th testimony of the witness because she refused to answer these questions, up n cross-examination. The motion was overruled, and complaint is made of this ruling. The witness had stated that her sister did order the defendant not to go into the pasture. The object of the cross-examination was to give the witness an opportunity to admit and explain, or deny any contradictory statement she may have made in her testimony on the former trial. The rule is for the benefit of the witness. The witness had the opportunity given to explain, and having refused or declined to do so, the court was not authorized or required to withdraw her testimony from the jury. It would probably have been the right of the defendant, having called the attention of the witness to her former testimony, to prove the contradictory statements. He either should have made this offer, or, instead of moving to exclude the testimony, he should have insisted that the court require the witness to answer the questions. Besides, the court instructed the jury that the demeanor and conduct of this witness on the stand was proper to be considered by them. We think the court did not err...