State v. Browman
| Decision Date | 10 May 1921 |
| Docket Number | No. 33633.,33633. |
| Citation | 182 N.W. 823,191 Iowa 608 |
| Parties | STATE v. BROWMAN. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; Joseph E. Meyer, Judge.
Appeal by defendant from a conviction of the crime of murder in the first degree and sentence of life imprisonment. Affirmed.C. C. Putnam, of Des Moines, for appellant.
Ben. J. Gibson, Atty. Gen., John Fletcher, Asst. Atty. Gen., and Arthur Rippey, Co. Atty., and H. W. Byers, both of Des Moines, for the State.
A summary of the errors relied upon is the alleged insufficiency of the evidence; error of the court in ruling upon the admission of certain evidence and exhibits offered by the state; error in the instructions; a transaction that occurred in the courtroom during the trial; proceeding with the trial of the case to 11 jurors, with defendant's consent, after a juror had been excused because of illness; misconduct of counsel for the state in argument to the jury.
[1] The murdered man, C. J. McCarthy, was a police officer of the city, and had been for a number of years, and was killed while engaged in the performance of his duties. The murder was an atrocious one, without the slightest provocation or excuse. The evidence is partly circumstantial, although there were eyewitnesses to the killing. Two or three of them identified the defendant as the man. There were electric lights in the vicinity; two lights on the outside of the building just above the colored man, as he sat on a ledge by the side of the steps of the stoop, just before the shooting. The evidence of a large number of witnesses for the state is denied only by the evidence of the defendant himself as a witness, except that the clerk of the grand jury gave testimony tending to impeach, by contradictory statements, one of the state's witnesses. Notwithstanding the impeachment, the weight of such testimony was for the jury. State v. Carpenter, 124 Iowa, 5, 98 N. W. 775. Becauseof the importance of the case, and since the sufficiency of the evidence is challenged, we deem it proper to go into the evidence somewhat in detail, but a brief statement of the general situation may be helpful at the start.
The murder was committed about 3 o'clock in the morning of September 27, 1919, at or near the northeast corner of the Flynn Dairy building. The defendant is a negro. He lived a few blocks from the Flynn Dairy. The person who did the killing was a negro, who at the time of the killing was under arrest by McCarthy upon complaint of the Flynn Dairy people, upon suspicion that he was the party who had been stealing milk from the wagons for some time previous, and it was thought that the person so under arrest had been prowling around the neighborhood of the dairy where a number of burglaries had been committed during the summer, and that he had committed them. The theory of the state is, as we understand it, that the motive for the shooting was to escape prosecution for burglary or larceny, and counsel for defendant concedes that this is likely true. Deceased was shot twice, once through the head. Another shot was fired at the patrol wagon as it approached, just before the shooting, and another afterwards. One of the drivers of a milk wagon, Miller, testifies that a number of times prior to the transaction in question he had seen a negro whom he afterwards identified as defendant, at different points along his route, and that he suspicioned the negro as the person who had been taking milk from his wagon during his absence in making deliveries. On one occasion in the daytime he saw defendant, as he says, upon the street two or three blocks from the dairy, and asked him if he lived in that community, to which the colored man replied, “No,” that he lived on Ridge street. A night or two previous to the killing, McCarthy had accompanied Miller for the purpose of discovering the person who was guilty of larceny of milk from the wagon, and to locate the party who had committed burglary in the vicinity. On the night in question the officer went to the dairy on the same mission, but at this time did not start out with the driver. He remained at the dairy a few minutes, putting on some overalls, probably to cover his uniform. Later he started out over the route covered by Miller. When Miller had driven about a quarter of a block from the dairy, he saw a colored man who he says was the defendant, and ran to McCarthy and said, “There he is; go to him.” Deceased went across the street to where the colored man was, and halted him, and Miller came across and told McCarthy that he was in possession of the right man. McCarthy then took defendant to the dairy and had one of the employees, Watkins, call the patrol wagon.
[2] 1. Witness Miller, after describing the dairy, brick building, driveways, steps, and so on, says:
That during the months of August and September he learned of a number of burglaries committed in the vicinity, and that milk had been stolen from his wagon prior to the murder; that he had seen a colored man a number of times, a few times close to him; that the man he stopped and talked with and the man he met was the defendant, and the same man who was arrested and who shot McCarthy; that the colored man wore an overall jacket, dark blue, looked like a new jacket, a newly washed dark blue jacket, a pair of light shoes which he at first took to be elk, but afterwards discovered they were tennis shoes and a dark cap; that he watched for the colored man and studied his bearing and walk so he would know him if he saw him again; that on the night or morning in question when he had gone about a quarter of a block he saw the defendant, saw the white shoes, and told McCarthy to go to him; that just when he went by one of the gas lights; witness had a miner's lamp on his cap, a brass lamp which burns calcium carbide; it has a reflector on it and makes a very bright light; when he went across to McCarthy he walked two feet in front of defendant with the light shining on his face; sized him up; looked him over from head to foot; noticed a peculiarity in his walk; does not know just how to describe it, but studied it night after night, when he would see him; saw defendant at the office of the chief of detectives afterwards and saw him walk there, walked the same as he did on the street; he walked several different ways; he walked the same and his build was the same as the man he saw up there; describes the cap, jacket, and tennis shoes, and told McCarthy he was sure the man was the right one; McCarthy and the man under arrest went towards the building, and Miller went on delivering milk; after he had gone on down the street he heard some shots, 10 or 15 minutes afterwards; is positive that defendant is the man that McCarthy arrested in his presence; at 3 o'clock in the morning it was quite dark; did not get light until 5 o'clock.
Witness was examined at length as to his identification at the time and afterwards, and as to other colored men.
Watkins testifies:
As to his employment at the dairy; saw McCarthy come to the plant the morning in question and had a colored fellow with him; the negro was dressed in an overall suit, cap, and canvas shoes; the negro said his name was Jackson; he and McCarthy walked past witness out of the driveway onto the street and down to the corner; called the patrol wagon; accompanied McCarthy and the colored man to the corner; stopped at the northeast corner of the building; describes the steps and the ledge at the side of the steps; McCarthy and witness stopped at the corner of the building; the negro sat down on the north ledge that runs out along the edge of the steps; he was facing east and McCarthy was north of him five or six feet; witness was straight north of him a foot from McCarthy; the colored man sat down on the ledge, his left foot restingon the sidewalk nearest to them, his right leg over the ledge; saw the lights of the automobile, the patrol coming; when the patrol got almost to a stop the colored man “whirled on his foot facing us, and I dropped to the sidewalk and hollered to McCarthy to get back; as near as I can recollect I seen the flash of the gun and heard the report at the same time and I got up and ran; I ran west; when I got to the entrance I seen somebody reeling back and forth across the sidewalk; I went to the city jail after this to examine negroes for the purpose of identification several times; saw this colored man sitting here at the police station; to the best of my judgment I would say it was the same man that was out there the morning McCarthy was killed; saw no other negroes around there except this man that McCarthy brought; the two lights, both lit, are right above each ledge; there were two lights, each about 32 candle power, shining brightly there, and the colored fellow was under them; I was right close to him; when I dropped to the pavement I thought the colored fellow fired only one shot; that was my best judgment at that time; afterwards they told me he had two bullet wounds in him; to the best of my judgment I only heard the one shot; I don't know as I ever was positive that defendant was the man; when I went to the station to identify the man they had, defendant came in and sat down; he then had on a hat and a white collar; they never tried to put a jacket on him or a cap; the man up there under the lights had on a leather cap, or part leather and part cloth, canvas shoes, and a dark blue overall suit; would say the jacket had not seen a whole lot of service; the shoes were the kind that come up around the ankle.”
Latham drove the patrol wagon that morning; as they approached the dairy saw a colored man sitting on the approach of that step, and McCarthy and another man standing alongside of him; the negro had on what he supposed was a pair of overalls and jumper jacket and cap; a man 5 feet 8 or 9 inches tall, rather heavy set, broad shoulders, high cheek bones, and rather dark; saw him sitting there before...
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