State v. Bales

• Decision Date: 05 April 1960
• Docket Number: No. 49947,49947
• Citation: 102 N.W.2d 162,251 Iowa 677
• Parties: STATE of Iowa, Appellee, v. Donald Max BALES, Appellant.
• Court: Iowa Supreme Court

Page 162

102 N.W.2d 162

251 Iowa 677

STATE of Iowa, Appellee, v. Donald Max BALES, Appellant.

No. 49947.

Supreme Court of Iowa.

April 5, 1960.

Hall & Ewalt, Indianola, for appellant.

Norman A. Erbe, Atty. Gen., Marion R. Neely, Asst. Atty. Gen., and James R. Hoyman, Warren County Atty., Indianola, for appellee.

LARSON, Chief Justice.

A jury found defendant guilty of assault with intent to inflict great bodily injury in violation of Section 694.6, Code of Iowa, 1958, I.C.A. This appeal only raises two questions for us to decide. The first is whether the trial court erred in refusing to admit testimony of two witnesses for the defense as to alleged statements made by the prosecuting witness several days after the assault took place. The second relates to the propriety of Court Instruction No. 14 on self defense. We think the trial court was right on both issues and, therefore, did not err in overruling defendant's motion for a new trial.

The involved circumstances are not in serious dispute. The defendant Bales, age 16, and Higgins, age 16, the injured party herein, had been together the preceding evening when a missing cigarette case and some change from a five dollar bill became the object of a controversy. The defendant and a Hembry boy were just leaving a pond site on the Vander Linden farm when an automobile bearing Higgins and two others came up. Higgins jumped out and approached the rear of the Hembry car and, as he did so, defendant Bales got out facing him. Higgins, in testifying for the state, said: 'He (the defendant) pulled out his gun and he shot once and he missed me. He shot again. Of course, I took a step towards him when he shot the first time. He shot again. I went down on my knees, and I got up and I was standing on one foot. I apparently said a few words I shouldn't have * * * so he shot the third time.' The other witnesses did not testify to more than two shots. The Hembry boy testified: 'I think there was a pause (between shots); then he (Bales) shot, right in there, at his feet. I was sitting in the car when these shots took place. I observed Verle Higgins after the shot or shots. After the first shot, he moved forward a little, and he shot again. I saw him fall.'

The defendant Bales testified that he was standing out of the car, that he asked Higgins if he had that cigarette case, and when he said he didn't, told him 'to get on away and leave us alone then.' When Higgins kept on coming toward him at a 'fast walk' with his fist clenched, 'I reached into the car and got the gun. * * * I * * * aimed at the ground in front of myself then, and pulled the trigger twice.' He also said he 'backed up after the first shot. * * * As I fired the pistol my intention was to shoot in the ground and scare him off. * * * I did not know he was hit.'

The witnesses estimated the distance between the boys at the time of the shooting was from five to ten feet. The second bullet entered Higgins' foot.

After the state had rested, and the defendant Bales had testified, the defense called two witnesses, Mrs. Richard Balzar and Jerry Weeks, to testify as to statements made to them by Higgins several days after the shooting. The state objected to that testimony for the reason that 'it is incompetent, irrelevant and immaterial, and has no bearing on the issues before this court, has no probative value to the issues before this court.' Pursuant to an inquiry by the court, defendant's counsel stated: 'The purpose goes to the intent of the defendant.' (Emphasis supplied.) The jury was then excused and a proffer made. It was stated Mrs. Balzar would testify that Verle Higgins told her a week or ten days after the shooting that he and defendant Donald Bales were smarting off and that he walked into the shot, that he thought the shots were blanks; also that Jerry Weeks would say that two or three days after the event Verle Higgins stated to him that the shooting was an accident and as much his fault as the defendant's

The state renewed its objection to this evidence, contending Higgins, under oath, had testified 'as to what occurred, what he saw, what he perceived on the day involved, * * * that this would have no probative value whatsoever as to the intent of the defendant, would be inadmissible as being remote, * * * would be an opinion and conclusion of Mr. Higgins' at that time, and not binding on the state.

The court rejected the offer, stating it felt 'that anything that the witness Higgins though is not material nor does it have a direct bearing on the intent of the defendant in this case.'

While it would seem this evidence on the issue of intent was both relevant and material, that is not conclusive, and we are satisfied that as offered it was not admissible.

I. It is not competent to prove what a prosecuting witness has said on subsequent occasions except for the purpose of impeaching him. It was not so offered here and did not appear a part of the res gestae or any other generally-recognized exception to the hearsay rule. Not falling within any recognized exceptions to the rule, it was only hearsay and inadmissable. We announced this rule applicable in criminal cases as early as State v. Ruhl, 8 Iowa 447, 451. In 22 C.J.S. Criminal Law, § 745, p. 1280, the rule in criminal cases is stated as follows: 'Declarations of the person injured which tend to exculpate accused, such as declarations that the act was an accident, or that the person injured or a third person was at fault, or declarations expressing forgiveness or a reluctance to prosecute, are not admissible, where they are not part of the res gestae, nor dying declarations.'

The Federal courts also recognized the rule and, in applying it in Guy v. United States, 71 App.D.C. 89, 107 F.2d 288, the court held that in homicide prosecution where declarations of the victim were evidently due either to her desire to shield accused, or to the fact that drink and blows had confused her notion of what happened, a rejection of declarations of the victim that she fell and that accused did not hurt her did not require a reversal. In 22 C.J.S. Criminal Law § 740, p. 1276, we find the rational of the rule where it is stated: 'The person injured by the crime, whether alive or dead, is in no sense a party to the prosecution, and therefore his statements and declarations are not evidence either for or against accused, unless they are relevant on the question of accused's guilt and were made in his presence, or unless they are admissible as part of the res gestae, * * * or perhaps as threats, * * *. Such testimony is generally inadmissible as hearsay.' State v. Smith, Iowa, 193 N.W. 181; State v. Kneeskern, 203 Iowa 929, 945, 210 N.W. 465; State v. Cooper, 195 Iowa 258, 191 N.W. 891.

In this connection it may be well to note that a further exception to the hearsay rule as to admissions by a party in a civil case is not here involved. Thus, that exception would not be applicable here.

II. The rule is well established in this jurisdiction that, although an insufficient objection is interposed if the court sustains the same, and there was in fact a...