State v. O'Brien

• Decision Date: 13 October 1890
• Parties: STATE v. O'BRIEN.
• Court: Iowa Supreme Court

81 Iowa 88

46 N.W. 752

STATE

v.O'BRIEN.

Supreme Court of Iowa.

Oct. 13, 1890.

Appeal from district court, Mitchell county; G. W. RUDDICK, Judge.

Appellant was indicted and tried for the crime of murder, and was found guilty of manslaughter. He was adjudged to be imprisoned for two years at hard labor in the penitentiary at Anamosa, and to pay the costs, and from that judgment he appeals.W. L. Eaton and J. M. Moody, for appellant.

John Y. Stone, Atty. Gen., and Thos A. Cheshire, for the State.

ROBINSON, J.

The state claims, and the evidence tends to show, that the material facts of this case are substantially as follows: Prior to the 15th day of July, 1888, the defendant entertained ill will towards one Henry Stocum, on the alleged ground that the latter had accused him of throwing cream cans into the well of a Mr. Lida. He threatened Stocum with physical violence, to different persons, and seemed to be seeking an encounter with him. Both were boys about 17 years of age, and of about the same size and weight, but Stocum had been affected for some time by a heart trouble, and was not strong. During the evening of the day named, defendant, accompanied by Warren and Willie Murphy, met Stocum in the highway, and assaulted him, knocking him down, holding and choking him after he was down, and kicking him himself, or causing him to be kicked by Warren Murphy. After Stocum was released, he was chased for a considerable distance. Stocum was much excited by the encounter, and lost health and strength rapidly from that time until the 28th day of July, 1888, when he died from the effects of the injuries caused by defendant. It is admitted by defendant that he encountered Stocum at the time and place claimed by the state, and that he then struck him; but he claims that no one was present but himself and Stocum, and that all he did was done in self-defense. He denies that the death of Stocum was the result of injuries received in that encounter, and claims that it was due to causes for which he was not responsible.

1. After the encounter described took place, defendant was arrested and tried on preliminary information, which charged him with the crime of assault and battery committed upon Stocum at the time and place stated. On that hearing Stocum testified in regard to the matter, giving his version of what occurred. On the trial in the district court several witnesses were examined on the part of the state as to the testimony so given by Stocum. Appellant insists that such evidence was improperly admitted, for the reason that it does not appear that any of the witnesses remembered or testified to all the evidence given by Stocum. It is well settled that a person who heard and recollects the testimony of a person deceased, may testify in regard to it, and it is not necessary in such a case for the witness to remember and repeat all of what was said in the language used by the deceased. It is sufficient for him to repeat the substance of all the testimony of the deceased. Small v. Railroad Co., 55 Iowa, 592, 8 N. W. Rep. 437;Fell v. Railroad Co., 43 Iowa, 178;Harrison v. Charlton, 42 Iowa, 574;Rivereau v. St. Ament, 3 G. Greene, 119. And the same rule is applicable in criminal cases. State v. Fitzgerald, 63 Iowa, 271, 19 N. W. Rep. 202. The witnesses in question repeated the substance of Stocum's testimony. Some were unable to give the order in which the statements were made, but we do not think that was a fatal objection. One witness testified that he did not remember the questions asked Stocum on cross-examination, nor any of them, and he did not know that he remembered any of the testimony he gave on cross-examination. He had stated that his recollectionwas good enough to give the substance of Stocum's testimony, and if he meant by his answers, with respect to the cross-examination, that he did not recollect what part of the testimony was given on the direct, and what part on the cross, examination, we do not think he showed that his testimony was not...