State v. Bone

• Decision Date: 09 October 1901
• Citation: 87 N.W. 507,114 Iowa 537
• Parties: STATE v. BONE.
• Court: Iowa Supreme Court

114 Iowa 537

87 N.W. 507

STATE

v.BONE.

Supreme Court of Iowa.

Oct. 9, 1901.

Appeal from district court, Cerro Gordo county; John C. Sherwin, Judge.

Defendant was indicted for the crime of murder. A trial to a jury resulted in a verdict of murder in the second degree. The defendant was sentenced for the term of 60 years, and from the judgment imposed he appeals. Reversed.Cliggitt & Rule, L. T. Genung and Blythe, Markley & Rinard, for appellant.

Chas. W. Mullen, Atty. Gen., and Chas. A. Van Vleck, Asst. Atty. Gen., for the State.

DEEMER, J.

Defendant was indicted for the murder of one James Allison. Prior to the time it is said the crime was committed these men had been friends. On the day of the homicide they met in Mason City at a livery barn. Here they had an altercation over some trifling matter, and it is claimed that when they separated Allison declared he would at some future time whip the defendant. After parting at the barn, Allison apparently went about his business, but defendant went to a butcher shop, and attempted to borrow a butcher knife, declaring, as is claimed, that he was not afraid, and that he would kill the G____d d____n son of a b____h. Not being able to procure the knife, he went to a hardware store, and there purchased one, which he placed in his pocket. It is claimed that immediately after procuring the knife he went in pursuit of Allison, and took the street where he would most likely find him when he (Allison) started home. Defendant was accompanied by one Tolberd. Very shortly after starting in the direction where Allison might be found, he was discovered by defendant, seated in a wagon, with a companion, evidently on his way out of the city towards his home. The evidence tends to show that he thereupon called to Allison, saying: “You get out of that wagon. I will fix you good and plenty, you son of a b____h.” Allison thereupon repeated the remark to his companion, and, saying, “I won't take that,” pulled his coat off, got out of the wagon, and started back to meet defendant and his companion. Defendant also pulled off his coat, and it is claimed took the butcher knife he had theretofore purchased in his hands, and advanced towards Allison at a rapid pace. The two men met near a bridge, defendant's companion remarking, “Give him h____l.” The evidence regarding the striking the first blow is conflicting, but there is no dispute that practically as soon as they met they engaged in a struggle, in which defendant used the knife with which he had theretofore armed himself, and that he struck and wounded Allison therewith many times. The fight continued until Allison was disabled and fell upon the street. After the conflict ceased, Allison arose, and started towards his wagon, but seemed so weak that he was assisted by several persons onto a street car, and taken to a doctor's office, where he died within an hour from the time he received his wounds. There is evidence to show that while Allison was being conducted to the street car defendant remarked, while flourishing the butcher knife in his hand, that “he intended to kill the son of a b____h if it cost him 25 years.” The state claims that under the facts disclosed defendant is guilty of murder, while defendant insists that what he did was in defense of his person, and that, if guilty of homicide at all, his crime is not higher than manslaughter. This latter contention is based on a claim that shortly before the encounter defendant was informed by his wife of an indecent assault made upon her by Allison, and that while smarting under the information thus given, and while his passions aroused thereby were at their height, he met Allison, and in his heated condition of mind, and provoked by the sight of his wife's assailant, entered into the conflict with Allison to which we have referred. These are the main contentions in the case, but several questions arose during the trial which are presented for review. Of these in their order.

1. First it is argued that the court erred in not sustaining a challenge to one of the jurors for cause. This juror had, previous to the time he was called into the box, heard a statement of the facts from an eyewitness, and from that had formed an opinion, which he said at one time it would require strong evidence to remove, but that, notwithstanding this, he thought he could give defendant a fair trial, and not be influenced by his previously conceived opinion. This person was afterwards challenged peremptorily, and did not sit on the case. There was no error in overruling the challenge. The case is not stronger in its facts than State v. Foster, 91 Iowa, 168, 59 N. W. 8, and that case is supported by State v. Vatter, 71 Iowa, 558, 32 N. W. 506,State v. Hudson (Iowa) 80 N. W. 233,State v. Brady, 100 Iowa, 194, 69 N. W. 290, 36 L. R. A. 693, 62 Am. St. Rep. 560, and other like decisions.

2. A witness whose name was not indorsed on the back of the indictment, and who was not before the grand jury, was examined on behalf of the state. Objection was interposed to his testifying. When the objection was made, the county attorney stated that notice was given, and handed what he claimed was a notice to the court. After examining the paper, which it was stated was filed with the papers in the case, the court overruled the objection, and permitted the witness to testify. This paper, which was made an exhibit, is not included in the abstract, but defendant insists that the ruling was erroneous, and asks us to presume that it was not based on a sufficient showing. As it appears that a notice was given, we will not presume it was insufficient, or, in the face of this record, that it was not properly served. Defendant, in his objections, stated that he did not concede notice was served as stated; but the court examined the notice, and, in the light of the objections and statement of defendant, found the witness qualified.

Error is assigned on a ruling permitting Allison's companion, who was with him in the wagon when defendant called to him (Allison) to get out, to state what Allison said in reply just as he started to get out to accept the challenge. Although there is no evidence that Bone heard the remark, the ruling was clearly correct. No argument is needed to demonstrate that this statement was part of the res gestæ. The conflict happened about 4 or 5 o'clock in the afternoon, and the altercation at the livery barn was an hour prior thereto. Defendant offered a witness to show that there was nothing unusual in his appearance from 11 to 12 o'clock on the day in question, but the evidence was excluded. As this was before Allison and defendant had met at the livery barn, and before defendant received the information from his wife to which we have referred, the ruling was certainly correct. The evidence was entirely too remote from the main transaction to shed any light thereon. No one disputes that these parties were friendly before the meeting at the barn, and defendant's condition of mind was not material except as it bore on the main propositions above stated.

Defendant offered evidence tending to show that Allison was a quarrelsome, vindictive, dangerous man. To rebut this the state presented a witness who testified to the contrary. On cross-examination this witness admitted knowledge of Allison's having been engaged in fights and quarrels, and of his being arrested for disorderliness. On redirect he was asked if he was a man who treasured up his feelings or continued his hostility. Over defendant's objections, witness answered in substance that he did not, that “he was friendly with all but one he ever fought with.” As the real character and disposition of the deceased was in issue, we see no error in the ruling, especially in view of the cross-examination of the witness.

3. During the trial the jury was taken in a body to visit the jail where the defendant was incarcerated, and while there of course saw the defendant. This is complained of. While we doubt the propriety of such a visit, still the jury must have known that defendant was restrained of his liberty, that he was in custody pending the trial, and that he was kept in the jail. The mere fact that they saw him there would add nothing to the knowledge they already possessed, and we fail to see how defendant was in any manner prejudiced by reason of this visit. To bring a defendant to his trial, and keep him in shackles, is a very different proposition. Such conduct suggests that the accused is a dangerous man, not to be trusted even under the surveillance of officers. Not so here. Every juror knew that the jail was the place for the confinement of prisoners awaiting trial. As well say that sight of the warrant under which defendant was arrested was calculated to prejudice as that seeing him confined would lead to a conclusion of guilt.

4. Many of the instructions are complained of. It is said that the court erred in assuming that defendant killed Allison, and in not instructing with reference to the various assaults included in the charge of murder. In at least three separate instructions the jury was told that it must find from the evidence beyond a reasonable doubt that defendant killed Allison before it could find him guilty. But in referring to the issue of self-defense the subject was introduced by such statements as these: “The defendant claims that his use of the knife and the killing of James Allison was done in self-defense,” etc. “In determining whether defendant was acting in self-defense at the time of the encounter with Allison resulting in his death, you should,” etc.; and, “But if you find that defendant was not justified in killing Allison, you should find him guilty, even if no motive has been proved.” Given in that part of the charge relating to motive and self-defense, and after full explanation of what was needed to make out the offense of murder, there was, we think, no error in making these statements. They were...