State v. Brooks
| Decision Date | 10 January 1922 |
| Docket Number | 33393 |
| Citation | 186 N.W. 46,192 Iowa 1107 |
| Parties | STATE OF IOWA, Appellee, v. ALONZO BROOKS, Appellant |
| Court | Iowa Supreme Court |
Appeal from Linn District Court.--JOHN T. MOFFIT, Judge.
TRIAL on an indictment for the crime of murder in the first degree. Jury returned a verdict finding defendant guilty of murder in the second degree. Judgment was entered committing defendant to the penitentiary at Fort Madison, Iowa for the period of his natural life. Defendant appeals.--Reversed.
Reversed and remanded.
F. A Heald, G. P. Linville, Ray J. Mills, M. F. Fields, Geo. H Woodson, and R. S. Milner, for appellant.
Ben J Gibson, Attorney General, B. J. Flick, Assistant Attorney General, and H. K. Lockwood, County Attorney, for appellee.
DE GRAFF, J.
About 6 o'clock on the morning of April 10th, 1919 the defendant Brooks shot and killed Harry Flippings in Cedar Rapids, Iowa. Both parties were negroes and were employed at the Douglas Starch Works. The defendant's work in the boiler room commenced at 6 and Flippings's at the pumping station at 7 o'clock in the morning. There is no conflict in the testimony that the shooting occurred before daybreak and at a time when it was fairly dark. Two witnesses (husband and wife) by the name of Tenant testified that on the morning in question they met Flippings and his wife about 5:30 on First Street near the entrance to the Douglas Starch Works. This was prearranged and had for its object the meeting of Brooks on his way to work. These four people had waited about 30 minutes behind some large posts near a watering tank and were about to leave when Brooks was observed a short distance away.
Tenant testified:
On cross-examination Mrs. Tenant testified:
Mrs. Flippings testified:
There had been some ill feeling between Flippings and Brooks prior to this time and the record discloses one altercation between them. On the evening before the tragedy Flippings visited the rooming house of the defendant for the purpose of having an interview with him but he was prevented from so doing by the landlord. Joyce the landlord testified that on that night he saw a gun in the possession of Flippings. There is no dispute in the evidence and several witnesses testified that Flippings was in the habit of carrying a gun. The testimony of the three eyewitnesses to the tragedy is to the effect that Flippings was unarmed that morning. Some feeling had been engendered between the defendant and the deceased by reason of the claim on the part of the deceased that the defendant was attempting to win the favor of Flippings's wife. Joyce the landlord testified:
Joyce testified that he told Brooks the things that Flippings had said. As a result of what Joyce told Brooks the latter went to Flippings and asked him why he didn't come straight to him. This testimony was given by Joyce in relation to a conversation which he subsequently had with Flippings. The latter told Joyce:
After Flippings left, Joyce and the defendant talked the matter over and Joyce testifies that Brooks seemed to be "pretty frightened and nervous." Brooks did not leave his room that night and canceled an engagement that he had with a lady friend. Mrs. Joyce was home on the evening in question and corroborated her husband in the more important matters. The foregoing evidence in brief affords the setting in relation to the characters and the incidents of the tragedy which resulted in the indictment of Brooks.
The primary errors assigned by appellant involve: (a) The admission and rejection of evidence, and (b) The instructions given and refused by the court. We will first note the rulings of the court on matters of evidence.
I. (1) Mrs. Flippings, wife of the deceased, was asked: "Have you any children?" To which she answered: "I have none living but I expect to be confined about the middle of next month." Timely motion was made based on sufficient grounds to strike the answer. This motion was overruled. The latter part of the answer was purely voluntary and the only recourse counsel had was to move to have same stricken. The answer may seem innocent, but able counsel in a criminal prosecution would make the most of such a situation and the pathos of argument furnished by the theme of the "unborn child" could easily, and as contended, did arouse the passion and the prejudice of the jury.
We would not reverse for this alone but take this opportunity to preclude further reference to such matters upon a retrial.
(2) Mrs. Flippings accompanied her husband on his last walk in the direction of the starch works on the morning of the tragedy and was permitted to answer this question:
After proper objection was entered by defendant which was overruled by the court, she answered:
"We went down there to meet Brooks to have him--well, tell us--to straighten out a story then, that he had told my husband, saying that he was paying Mrs. Tenant to get me for him."
Motion was made to strike the answer for the reasons stated in the prior objection and for the further reason "that it assumes that defendant Brooks had told them the story along the line suggested by the witness in her answer." The motion was overruled by the court. It should have been sustained.
What Mrs. Flippings' purpose was in going with her husband was wholly immaterial, and she could not properly testify as to the purpose of any other person. No competent testimony in this record discloses that Brooks was paying money to Mrs. Tenant to secure the favor of Mrs. Flippings.
In the prosecution of a criminal case the State should not be permitted to do indirectly what may not be done directly. In the last analysis the answer of this witness is an insinuation and obviously prejudicial to the rights of the defendant.
(3) The court admitted as a dying declaration over the objection of the defendant a statement written and signed by the deceased as follows:
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