State v. Boston, No. 46105.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtGARFIELD
PartiesSTATE v. BOSTON.
Docket NumberNo. 46105.
Decision Date19 October 1943

233 Iowa 1249
11 N.W.2d 407

STATE
v.
BOSTON.

No. 46105.

Supreme Court of Iowa.

Oct. 19, 1943.


Appeal from District Court, Polk County; John J. Halloran, Judge.

Defendant, indicted and tried for murder, was convicted of manslaughter and sentenced to the reformatory. He has appealed.

Modified and affirmed and remanded.

MULRONEY, C. J., and MILLER, WENNERSTRUM and MANTZ, JJ., dissenting in part.

[11 N.W.2d 408]

Henry H. Griffiths, of Des Moines, for appellant.

John M. Rankin, Atty. Gen., Don Hise, Asst. Atty. Gen., and Francis J. Kuble, Co. Atty., and Ralph D. Moore, Asst. Co. Atty., both of Des Moines, for appellee.


GARFIELD, Justice.

In the early evening of November 27, 1941, Thanksgiving Day, defendant shot and killed one Lavelle Jackson. For six months defendant, a common laborer, had rented living quarters for himself, wife and baby, in Jackson's home. When defendant returned from work on November 25, his wife and baby were gone and he saw his wife's torn undergarments on the floor. The wife soon returned, crying, and told defendant that Jackson had raped her that day and that she had him arrested. After his wife had related the details of the attack upon her, defendant went to the police station to inquire what had been done with Jackson. Defendant was later informed by an assistant county attorney that there was no case against Jackson because of a lack of evidence to corroborate the wife's charge. Defendant was also informed that Jackson had told the police he had been intimate with defendant's wife since July, with her consent. The police did not hold Jackson.

Defendant says he was greatly upset by the news of Jackson's conduct, by what Jackson had told the police regarding his wife, and by their attitude toward prosecuting Jackson. He says he was unable to sleep or eat for the two nights and days before the shooting. On the morning of Thanksgiving Day, defendant and his family moved from the Jackson home. That afternoon defendant attempted, without success, to borrow a gun from three different persons. From a fourth acquaintance, he obtained a gun. From another he procured a shell, then went to the rear of the Jackson home and fired one shot which struck Jackson in the region of the heart. He then gave himself up to the police. Defendant claims he thought he saw his wife in Jackson's company at the time of the shooting, although it is admitted she was not there, that he has no recollection of firing the fatal shot, and if he did so it was because he was driven insane.

I. Defendant put in evidence in detail, by his wife, his mother–in–law, and himself, what his wife told him regarding the attack upon her by decedent. Several police officers testified on cross–examination by defendant that he told them decedent had raped his wife. Defendant sought to prove not only what his wife told him regarding the attack and the effect upon him but that the charge was true. The court ruled that

[11 N.W.2d 409]

the truth of the charge was immaterial and excluded the offer. Defendant complains of the ruling.

It is doubtful if the ruling was prejudicial because defendant's wife, the only person except Jackson with personal knowledge of the matter, testified at length concerning decedent's attack upon her. While she purported to be repeating what she told defendant, much of her testimony is a recital of what happened during the attack rather than of what she told defendant. The undergarments she says decedent tore from her were received in evidence. Defendant testified he believed his wife's charges were true. It is questionable if the offered proof of the truth of the charge would have benefited defendant. However that may be, the ruling was proper.

There is one decision, and perhaps others, that evidence of intimacy between defendant's wife and deceased is admissible in a homicide case to corroborate testimony that she communicated such fact to defendant before the killing. Bereal v. State, 88 Tex.Cr.R. 138, 225 S.W. 252. However, what we believe to be the weight of authority and the better reasoning support the ruling below. Bryan v. Commonwealth, 131 Va. 709, 109 S.E. 477;Shipp v. Commonwealth, 124 Ky. 643, 99 S.W. 945, 10 L.R.A.,N.S., 335, 340; People v. Hurtado, 63 Cal. 288, 290. These decisions proceed on the theory that the important inquiry is what the accused was told regarding the conduct of deceased and its effect upon him, before the killing. That the truth or falsity of the wife's confession of infidelity with decedent could not influence defendant's conduct. That if defendant were permitted to prove the truth of the charge, the state should be allowed to show its falsity. This would lead to an inquiry into a collateral matter and divert attention from the rightful issues.

But, defendant argues, the state put in issue the truth of his wife's charge and therefore he should be allowed to substantiate it. It is true that testimony otherwise inadmissible is frequently received because evidence was introduced on that subject by the adverse party. 31 C.J.S., Evidence, p. 913, § 190; 20 Am.Jur. p. 262, § 274; Maasdam v. Jefferson County F. M. I. Ass'n, 222 Iowa 162, 165, 268 N.W. 491. But this rule is not applicable here.

In contending the state put the truth of the charge in issue, defendant relies principally on testimony elicited by him on cross–examination of decedent's wife that her husband had told her on the day he was arrested he had been going with Mrs. Boston since July “and she got mad at him because he would not buy her a dress and had him arrested.” It is said this is evidence of the falsity of Mrs. Boston's charge. We do not so regard it. But in any event, it was testimony brought out by defendant and not by the state. A party is not permitted on cross–examination to bring out improper and immaterial matter and then show its falsity. The testimony of police officers that defendant told them Jackson had raped his wife was also elicited by defendant on cross–examination.

II. Error is assigned to the admission in evidence of two written statements signed by defendant and a third statement first signed by defendant's wife and then read and signed by defendant as true. The three statements were taken by the officers on the night of the tragedy. It is contended these exhibits were improperly admitted because not shown to have been voluntarily made and because they contain only a part of what defendant told the officers. There was no error in admitting these exhibits.

Each statement signed by defendant recites that it is made of his own free will. One of defendant's statements recites that the exhibit signed by his wife is true and was read and signed by him. There is little, if any, evidence that any of the exhibits was not voluntarily given. When the statement first signed by defendant was offered in evidence, defendant's only objection was that it omitted part of what defendant had told the officers.

The court fully instructed the jury in terms favorable to defendant that before the exhibits could be considered it must first be satisfied beyond a reasonable doubt that the papers were signed freely and voluntarily, without threats, violence, or putting in fear, and with full knowledge of their contents. The court, to defendant's advantage, did not tell the jury that a confession which purports to be freely given is prima facie voluntary and the burden to show the contrary rests upon a defendant. See State v. Bisanti, Iowa, 9 N.W.2d 279, 281;State v. Plude, 230 Iowa 1, 6, 296 N.W. 732.

[11 N.W.2d 410]

Testimony that the exhibits did not contain all defendant told the officers did not render them inadmissible. All of the written statements were offered by the state. They purport to be complete and not partial or unfinished statements. As frequently happens, defendant as a witness denied having told the officers some of the things contained in the exhibits and testified that some statements orally made by him to the officers were omitted from the writings. However, defendant and his wife testified fully as to what they told the officers and defendant's version of the whole transaction resulting in the statements was before the jury. See 20 Am.Jur. p. 425, § 488; 22 C.J.S., Criminal Law, p. 1439, § 820; Annotation 2 A.L.R. 1017.

III. Defendant complains of the court's refusal to give his requested instruction 1 on insanity and the giving of instruction 12 on that subject. Defendant is not entitled to a review of these matters because no proper exception was taken to the refusal of the request nor the giving of the instruction. No exception was taken to instruction 12. Defendant's requested instructions 1 and 2 were each marked by the court “Requested and refused. Defendant excepts.” No other exception to the refusal of No. 1 was taken, no grounds of exception were specified. Defendant filed a motion for new trial and exceptions to instructions, but neither made any reference to the refusal of request No. 1. These exceptions to instructions did, however, except to the refusal of request No. 2 on another subject.

Section 11495, Code 1939, provides: “Any party may take and file exceptions to the instructions of the court, *** or to the refusal to give any instructions as requested, *** but all such exceptions shall specify the part of the instructions as excepted to, or of the instructions requested and refused and the grounds of such exceptions.” This statute is applicable to criminal as well as civil cases. Code, § 13876; State v. Young, 230 Iowa 1119, 1120, 300 N.W. 263, 264, and cases cited; State v. Griffin, 218 Iowa 1301, 1308, 254 N.W. 841, and cases cited.

The notation by the court of a general exception to the refusal of request No. 1 was not a compliance with section 11495, no grounds of exception were specified and there is no basis on which to assign error here. Thomas v. Charter, 224 Iowa 1278, 1284, 278 N.W. 920, and...

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32 practice notes
  • State v. Jacoby, No. 59756
    • United States
    • United States State Supreme Court of Iowa
    • 21 Diciembre 1977
    ...259 Iowa 952, 960, 146 N.W.2d 266, 271 (1966); State v. Drosos, 253 Iowa 1152, 1164, 114 N.W.2d 526, 533 (1962); State v. Boston, 233 Iowa 1249, 1255, 11 N.W.2d 407, 410 (1943). An express intent to kill is not a necessary element of manslaughter, a showing of reckless indifference to life ......
  • State v. Johnson, No. 47455.
    • United States
    • United States State Supreme Court of Iowa
    • 16 Diciembre 1949
    ...143 Iowa 214, 121 N.W. 1021;State v. Bittner, 209 Iowa 109, 227 N.W. 601;State v. Johnson, 210 Iowa 167, 230 N.W. 513;State v. Boston, 233 Iowa 1249, 11 N.W.2d 407; see also, State v. Hofer, 238 Iowa 820, 28 N.W.2d 475. We are satisfied that the burden rests upon the State to convince the j......
  • State v. Shephard, No. 50987
    • United States
    • United States State Supreme Court of Iowa
    • 12 Noviembre 1963
    ...passion without malice. An instruction on involuntary manslaughter or the doing of a lawful act in an unlawful manner. State v. Boston, 233 Iowa 1249, 11 N.W.2d 407; Williams v. State, 88 [255 Iowa 1235] Ga.App. 761, 77 S.E.2d 770, would have been proper, but no request for such instruction......
  • State v. Hofer, No. 46993.
    • United States
    • United States State Supreme Court of Iowa
    • 29 Julio 1947
    ...the burden rests upon him to show the contrary. State v. Bisanti, 233 Iowa 748, 751, 9 N.W.2d 279, 281, and cases cited; State v. Boston, 233 Iowa 1249, 1253, 11 N.W.2d 407, 409. Here no testimony was offered in defendant's behalf and the state's evidence tending to show exhibits 4 and 5 we......
  • Request a trial to view additional results
32 cases
  • State v. Jacoby, No. 59756
    • United States
    • United States State Supreme Court of Iowa
    • 21 Diciembre 1977
    ...259 Iowa 952, 960, 146 N.W.2d 266, 271 (1966); State v. Drosos, 253 Iowa 1152, 1164, 114 N.W.2d 526, 533 (1962); State v. Boston, 233 Iowa 1249, 1255, 11 N.W.2d 407, 410 (1943). An express intent to kill is not a necessary element of manslaughter, a showing of reckless indifference to life ......
  • State v. Johnson, No. 47455.
    • United States
    • United States State Supreme Court of Iowa
    • 16 Diciembre 1949
    ...143 Iowa 214, 121 N.W. 1021;State v. Bittner, 209 Iowa 109, 227 N.W. 601;State v. Johnson, 210 Iowa 167, 230 N.W. 513;State v. Boston, 233 Iowa 1249, 11 N.W.2d 407; see also, State v. Hofer, 238 Iowa 820, 28 N.W.2d 475. We are satisfied that the burden rests upon the State to convince the j......
  • State v. Shephard, No. 50987
    • United States
    • United States State Supreme Court of Iowa
    • 12 Noviembre 1963
    ...passion without malice. An instruction on involuntary manslaughter or the doing of a lawful act in an unlawful manner. State v. Boston, 233 Iowa 1249, 11 N.W.2d 407; Williams v. State, 88 [255 Iowa 1235] Ga.App. 761, 77 S.E.2d 770, would have been proper, but no request for such instruction......
  • State v. Hofer, No. 46993.
    • United States
    • United States State Supreme Court of Iowa
    • 29 Julio 1947
    ...the burden rests upon him to show the contrary. State v. Bisanti, 233 Iowa 748, 751, 9 N.W.2d 279, 281, and cases cited; State v. Boston, 233 Iowa 1249, 1253, 11 N.W.2d 407, 409. Here no testimony was offered in defendant's behalf and the state's evidence tending to show exhibits 4 and 5 we......
  • Request a trial to view additional results

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