State v. Berry

• Decision Date: 10 January 1950
• Docket Number: No. 47543.,47543.
• Citation: 40 N.W.2d 480,241 Iowa 211
• Parties: STATE v. BERRY.
• Court: Iowa Supreme Court

241 Iowa 211

40 N.W.2d 480

STATE

v.BERRY.

No. 47543.

Supreme Court of Iowa.

Jan. 10, 1950.

Jack Berry was convicted in the Hardin District Court, Sherwood A. Clock, J., of murder, and he appealed.

The Supreme Court, Smith, J., reversed the conviction and remanded the case for a new trial and held that testimony of witness as to statements of defendant's wife was admissible as res gestae, that testimony of non-experts as to defendant's mental competency was properly admitted, that evidence sustained finding that defendant was mentally competent, and that argument of special prosecutor was reversible error.

Garfield and Hays, JJ., dissented in part.

Lundy, Butler & Lundy, of Eldora, for appellant.

Robert L. Larson, Attorney General of the State of Iowa, and Don W. Barker, County Attorney of Hardin County, of Iowa Falls, for appellee.

SMITH, Justice.

The defendant presents three questions on appeal: 1. Whether certain statements of defendant's wife were admissible as part of the res gestae; 2. Whether uncontradicted evidence of defendant's insanity required a directed verdict of acquittal; and 3. Whether certain arguments of prosecuting attorney were so prejudicial and unsupported by evidence as to warrant a new trial.

The alleged murder of Ernest Knott was committed shortly after midnight of June 27, 1947, in Iowa Falls, Iowa. Earlier in the evening defendant and decedent and their wives and another couple had met in the kitchen of decedent's home for a drink before going to a dance. Defendant and his wife, Hester, (decedent's sister) lived upstairs in the same house. Defendant and his wife went to the dance with decedent in his car. Decedent's wife did not go. Defendant left the dance alone about midnight, had some beer at a nearby tavern, walked home, got a gun which he had bought a few weeks earlier, and loaded it with shells just purchased that day. He went back downstairs but disclaims any memory of later happenings except that he thinks he sat on the well curb with the gun in his hand.

Decedent and Mrs. Berry left the dance later and came past defendant as he sat on the curb and, after a brief conversation with him, went into the house leaving him sitting outside. Mrs. Berry testifies as a witness for defendant, that after she went upstairs she heard a shot. She came down and said to decedent, ‘I wonder if that damn fool shot himself.’ They went outside and found defendant ‘slumped down, his hands were on his knees hanging down and his head was down and his hands were limp. I slapped him and shooked him and laid him back on the platform. Ernie (decedent) found the gun down between his legs. Jack felt cold, he was ice cold. I couldn't arouse him.’

Mrs. Berry further testified that decedent sat down beside defendant: ‘Then Jack came to and he just started to swing and grab and was wrestling with Ernest there. They were laying down partly on the well curb and on the ground. I don't know who had the gun. I heard a shot but I don't know who done it. They didn't wrestle very long and they both got up and Ernie started backing, half running, down to the trees. He just shot, shot, shot, one right after the other. Ernest had the gun when they started to wrestle. When he was backing down to the tree he wasn't steady and he swung around and fell to the north of the tree. He had hold of the tree. Jack looked for his glasses and run into the house and I sneaked into the house and called Earl (another brother) and Ruth (Earl's wife). There was no sound in the house. Earl said Arlene (decedent's wife) was asleep and they had a hard time waking her up.’

According to Earl Knott's testimony his sister made statements to him when he arrived, at variance with her testimony (above summarized) as to what had occurred. The competency of his testimony in this respect is questioned on this appeal.

Arlene says she was asleep when her husband returned from the dance but awoke when he turned on the light. He was undressing when the first shot was heard and she testified Mrs. Berry came running downstairs and called ‘Ernie come quick,’ also saying ‘Jack, Jack’ several times and ‘the crazy fool probably shot himself, that is the thought he had in his mind.’ This witness apparently did not go outside but says ‘I heard four or five rapid shots right after one another and I heard Hester crying and kept calling ‘Ernest, Ernie.’ Then he (defendant) ran into the house.'

‘After he ran upstairs Hester came in. She phoned Earl. It was fifteen, twenty or twenty-five minutes before Earl came in the back door. I said to Earl, ‘Jack is upstairs and I think he has got a gun.’ * * * I heard Jack say when Earl started up the stairs, ‘Don't come any farther you son of a bitch, I will shoot you too.’ Earl jumped back.' Earl got Arlene and defendant's little son out of the house and across the street to the home of Mrs. Nesbit, Earl Knott's mother-in-law.

Ora Knott, another brother of decedent, arrived after the tragedy, while defendant was still upstairs. He testified that when he called to defendant to come down defendant answered, ‘Come on you big muscled chesty, you are next on my list.’

Joe Stiner, a policeman, remembered the words to be ‘mullet, or muscle brain’ and said defendant threatened Ora Knott: ‘You try to come up here and I will give you some of the same.’

The sheriff and other peace officers finally used tear gas to compel defendant to come down after he had defied everybody for an hour or more. He came out the upstair window and down a ladder.

We have set out enough of the testimony to give a general picture of the fateful events of that night. There is of course an immense amount of detail omitted. We shall set out more as we discuss the questions raised on appeal.

At a preliminary hearing (at or after arraignment, under Code, Chapter 783, I.C.A. § 783.1 et seq.) to determine defendant's then mental condition, a jury found him insane and he was committed to the department for criminal insane at Anamosa. Approximately a year later the State Board of Psychiatry pronounced him sane and he was returned to Hardin County for trial, resulting in his conviction from which this appeal is taken.

I. Defendant challenges the competency of testimony as to certain statements of Hester Berry, his wife, made shortly after the shooting. Five propositions are urged. Statements to be res gestae must be: 1. spontaneous; 2. not in form of narrative; 3. not consisting of opinion or conclusion; 4. so clearly connected with the transaction as to exclude opportunity for fabrication; and 5. voluntary exclamations and not in response to questions.

We have examined the authorities cited to support these propositions. Numbers1 and 4 state the controlling considerations. Spontaneity and such closeness of connection with the transaction as to exclude any presumption of fabrication are the essentials. State v. Brooks, 192 Iowa 1107, 1115, 1116, 186 N.W. 46;State v. Stafford, 237 Iowa 780, 785-787, 23 N.W.2d 832, 837. In fact the two are practically one, the element of spontaneity being the exact antithesis or denial of any thought of fabrication. The declaration must of course of be so connected with the transaction as virtually to constitute a part of it or to grow out of it. In other words, the spontaneous utterance must be made while under the influence of the event. 32 C.J.S., Evidence, § 417.

In Stukas v. Warfield-Pratt-Howell Co., 188 Iowa 878, 888, 175 N.W. 81, 84, the rule is restated that the proper test of the admissibility of such statements ‘is whether they relate to the principal transaction and are explanatory of it and are made under such circumstances of excitement still continuing as to show that they are spontaneous and not the result of deliberation or design. Within this general rule the admissibility of the declarations under the circumstances of the particular case is largely within the discretion of the trial judge. The facts and circumstances of no two cases can be precisely alike and the exact length of time is not mathematically controlling.’ The quoted language is from Christopherson v. Chicago, M. & St. P. R. Co., 135 Iowa 409, 417, 109 N.W. 1077,124 Am.St.Rep. 284, where many earlier cases are cited. It is requoted in Roushar v. Dixon, 231 Iowa 993, 996, 2 N.W.2d 660. See also Dedman v. McKlnley, 238 Iowa 886, 892, 893, 29 N.W.2d 337, 340. In re 32 C.J.S., Evidence, § 403, at page 21, the same rule is succinctly stated. It is too well established to require further citation.

The statements in question here are clearly within this sound rule. They have no appearance of fabrication. Rather they have every appearance of spontaneity. They were made by defendant's wife under circumstances that strongly suggest she was under the spell of the drama she had within the hour witnessed,-practically taken part in. Immediately after the shooting she ‘sneaked into the house’ and called her brother Earl. He lived about three blocks away. We are not concerned with the exact timing at this point. Earl got in his car and came. Defendant was upstairs. ‘Hester came around the house and hollered at me.’ The dead brother was lying outside. ‘She told me she thought Jack had a gun and she said ‘I think he killed Ernest.’ I said ‘Where is Ernest?’ She said ‘He is outside here.’ We went right out and she showed me where Ernest was laying. * * * She said, ‘My God, I don't know what I am going to do.’ And she started to cry.'

In response to further questioning of the witness he testified: ‘She said that when they first came home Jack was sitting on the well * * * and she said ‘Jack, what is the matter with you’ and he turned and said ‘Go upstairs to bed’ and she and Ernest went into the house and (she) was taking off her dress and hanging it up when she heard a shot and she said she rushed down the steps * * *. Ernie went out and asked what was wrong. He looked down. And at first when he seen the gun he reached down to pick it up and said, ‘I...