State v. Brandenberger
| Citation | 130 N.W. 1065,151 Iowa 197 |
| Parties | STATE OF IOWA, Appellee, v. JOSEPH BRANDENBERGER, Appellant |
| Decision Date | 02 May 1911 |
| Court | United States State Supreme Court of Iowa |
Appeal from Dubuque District Court.--HON. ROBERT BONSON, Judge.
DEFENDANT was indicted for the crime of murder in the first degree. Upon trial to a jury he was convicted of the offense charged and his punishment was imprisonment for life in the state penitentiary. He appeals. Reversed.
Reversed.
John P Frantzen, for appellant.
George Cosson, Attorney-General, and John Fletcher, Assistant Attorney-General, for the State.
Defendant and the deceased, Henry Schranz, were bricklayer's helpers, residing together in the city of Dubuque for some weeks prior to the 27th day of August, 1909, in a small cottage in said city. These parties had known each other for many years, had often worked together, and had had several quarrels prior to the one which resulted in the death of Schranz. Defendant was engaged about his work on August 27, 1909, until five or six o'clock in the evening, when he went to the cottage where he and Schranz resided. Schranz had preceded him, and shortly after defendant's arrival there was considerable loud talking and quarreling between the men a short time before six o'clock in the evening. They were seen to come out of the house shortly thereafter and to go back again, when the quarreling was renewed. It is claimed by defendant that the deceased, Schranz, made an assault upon him, and choked and beat him to such an extent as to cause him to lose consciousness; that when he regained control of himself, the deceased was out in the yard; and that defendant, still maddened from the beating he had received, and without realizing the consequences of his act, took a loaded shotgun from the house, went out into the yard, and fired two shots in rapid succession at Schranz, each of which took effect, causing the death of said Schranz shortly thereafter. Deceased was a man about five feet ten inches in height, weighed from two hundred and forty to two hundred and fifty pounds, had quite a reputation as a wrestler, and of being a quarrelsome man. There was testimony for the state tending to show, and from which the jury may have found, that when defendant and Schranz came out of the house, after they first met, defendant called Schranz vile names, and took out his knife, intending to use it as he said if Schranz attacked him. Defendant claimed that after the first wordy conflict he went out onto the street to look for a policeman; but, in fact, he went into a saloon, where he took a glass of beer. After defendant returned to the house, deceased came out and began talking to some neighbor boys, and in ten or fifteen minutes afterward defendant appeared at the door of the house with a double-barreled shotgun, and, according to the state's claim, immediately raised it, took deliberate aim at Schranz, who was about twenty-five feet from him and fired the two shots which caused the death of Schranz. There is testimony showing that upon the first discharge of the gun Schranz fell to the ground, and that, after he fell, defendant fired the second shot. Schranz died within a few minutes after the last shot was fired, and a post mortem examination revealed the fact that his heart, lungs, kidneys, spleen, and stomach were penetrated by a great number of shot. No one was in the house save the defendant and the deceased, but the defendant says that the quarrel arose over who was entitled to the possession of a salt shaker; that, because thereof, he was attacked by Schranz after he had entered the house a second time, and was beaten into insensibility; and that he had no recollection whatever of shooting Schranz.
For a reversal of the judgment appellant's counsel contend, first, that counsel for the state was guilty of misconduct in his examination of the defendant while on the witness stand and in his argument to the jury; second, that the court erred in failing to give any instruction to the jury with reference to the effect of testimony adduced by the defendant showing his good character; third, that the court erred in giving certain of its instructions to the jury; and, fourth, that the verdict is contrary to the evidence and is not supported thereby.
I. Defendant was a witness in his own behalf, and the first point made is that counsel for the state in his cross-examination was guilty of misconduct in inquiring into the defendant's past history, previous residences, prior conduct, and mode of living. That the exact question presented may be understood, we here quote from the record as follows:
Q. Were you married in Alsace-Lorraine? A. Yes, sir. Q. What year were you married in? A. 1884. Q. With whom did you live from 1884 to 1896? A. Until 1892 I was home. Q. I said with whom? A. My wife. . . . Q. And from 1892 until 1896 with whom did you live? A. I was boarding then. . . . Q. With whom did you live in the city of Dubuque from 1906 until 1908? A. Well, from 1906 until 1908 I was working for the government. Q. No; who did you live with? A. I was working on the river two summers, 1897 and 1898. Q. You were working on the river in 1908--I am asking you from 1906 until 1908? A. I was boarding. Q. With whom? A. By John Klein. Q. With whom did you live in the year 1907? A. My wife. Q. Your wife that you married in Alsace-Lorraine? (Defendant objects as prejudicial, incompetent, irrelevant, and immaterial, not proper cross-examination.) By the Court: I think I will sustain the objection. Q. What was your wife's name before you were married to her that you lived with in 1907? A. Mrs. Shertung. Q. Mrs. Shertung? During the time--during the year 1907--I will ask if your wife, to whom you were married in Alsace-Lorraine in 1884, was still alive? (Defendant objects as incompetent, irrelevant, and immaterial, not cross-examination, and not tending to prove or disprove any issue in the case, and prejudicial.) Q. And from whom you had never had any divorce? (Defendant objects as prejudicial, incompetent, irrelevant, and immaterial, not cross-examination; this witness not having testified to any such facts.)
Counsel for State: I might suggest to counsel that this is for the purpose of testing the credibility of this witness, subject to the same rules as any other witness.
Counsel for Defendant: I don't see how that would in any way test the credibility of the witness. The question that has been asked, how that would in any way tend to throw any light upon the credibility of this witness. It is apparently an attempt to get into this record some matter which is entirely foreign and outside of the record, and good for no purpose or object of any kind in this case.
By the Court: I think I will sustain the objection. There is no question but what in the civil practice that might be allowed and competent.
Counsel for State: Of course, the court has the say on the proposition, but I take issue with the court on that proposition. Any witness taking the stand we have a right to show anything that would tend to discredit the witness. (State duly excepts.) . . .
Q. You may state if you consulted any lawyer upon the proposition of your continuing to live with the wife that you had married in this country in the year 1908?
Defendant is here shown "State's Exhibit 1" (being the double-barreled shotgun introduced in evidence by the state upon its main case), and the county attorney asks of defendant: Q. Is this your gun?
Counsel for Defendant: Objected to as incompetent, irrelevant, and immaterial, not cross-examination; nothing asked on direct examination about that. If the state wants to make him their witness, I have no objection, but it is not cross-examination.
By the Court: This man was interrogated, was he not, as to what was in that house? He may answer. (Defendant duly excepts.)
A. Yes, sir. Q. When was the last time that you had that gun, that you know of, prior to the 27th of August, 1909? (Defendant objects as incompetent, irrelevant, and immaterial, and not cross-examination.)
Counsel for defendant: We make the further objection for the reason that this witness has not been examined in relation to the statement (State's Exhibit 2), and it is therefore not cross-examination.
By the Court: I assume you will interrogate him in regard to this statement, 'State's Exhibit 2?'
Counsel for the State: I certainly will.
By the Court: He may answer. (Defendant duly excepts.)
A. About a couple of weeks. Q. What was the occasion of having the gun? Where were you? ...
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