State v. Brown

• Decision Date: 19 October 1911
• Citation: 152 Iowa 427,132 N.W. 862
• Parties: STATE v. BROWN.
• Court: Iowa Supreme Court

152 Iowa 427

132 N.W. 862

STATE

v.BROWN.

Supreme Court of Iowa.

Oct. 19, 1911.

Appeal from District Court, Mahaska County; John F. Talbot, Judge.

The defendant appeals from a conviction of murder in the second degree. Affirmed.

Weaver, J., dissenting.

Frank T. Nash, for appellant.

George Cosson, Atty. Gen., and J. G. Patterson, County Atty., and Jas. A. Devitt, for the State.

LADD, J.

At about 11 o'clock of September 19, 1911, Charles Barrett was killed by some one. Appellant contends that the evidence fails to identify him as the guilty person. Elizabeth Barrett, from whom deceased had been divorced several years, and a sister of defendant, with their three children, resided in a house on West Eighth street, in Oskaloosa. On the opposite side, and the width of a lot to the east, lived her parents. The defendant made his home with them, as did his son and wife. It was the latter's birthday, and members of the family with some neighbors gathered in the evening to enjoy with her the gift of a piano from her husband. Mrs. Barrett came at about 8 o'clock, having left her daughter Maud, about 15 years of age, at home. While there, deceased brought Maud some bread and bananas, and talked with her, and according to her story she soon went to her grandfather's house, where she related, in the presence of defendant, what had occurred, and to which the latter remarked, in response, deceased had no business coming there. She also swore that in the afternoon she had seen defendant conceal a revolver in his shirt, and previously had heard him threaten to take her father's life. Charles, a son of Barrett, 24 years of age, testified to having heard defendant say that deceased “must not fool around on Eighth avenue, because if he does I will get him.” Samuel Barrett, another son, about 18 years of age, returned from down town between 9 and 10 o'clock, stopped at his grandfather's house until about 11 o'clock, when he and his mother departed for home. He testified that, though defendant was with his grandfather when they left, he observed him come to the lawn just as he and his mother had reached the porch, and pass along the east side of the house toward a corn patch south of it; that witness first went through the kitchen to an outside closet, and noticed defendant in the alley back of the coalhouse; that upon returning to the kitchen he ate a lunch, and as he started for the porch in front heard three shots fired in the rear of the house, and, upon reaching the porch, saw his father run past the porch into the road, and fall. This witness also testified to having heard defendant threaten the life of deceased. There was an alley immediately west of Mrs. Barrett's home, running north and south. On that day Shinofield had moved into a house set back near this alley on a lot fronting west on F. street, and cornering that on which Mrs. Barrett's coal shed was located. He and his wife, Elizabeth, were occupying the southeast bedroom in the upper story, and had their horse and bulldog tied in a tent about 10 feet from the alley. She was awakened by the barking of the dog, as though at some one, and heard the three shots, and immediately thereafter heard footsteps of some one passing, and, upon looking out the window, saw a man dressed in dark clothes walking rapidly in a southerly direction along the alley, with his hand doing something at his hip pocket. Mrs. Risney and husband lived at the northeast corner of the block diagonally across from the southwest corner of that on which the Barrett house was located, so that in passing out of the alley at the south one might turn west on Avenue Nine West, over the Iowa Central Railway, past their residence. She had returned from the opera house at about 11 o'clock, and testified that, while standing in the front door, she heard the dog bark and the three shots fired, walked out on the porch, and a moment later saw a man dressed in dark clothes come out of the alley and walk west along Avenue Nine West past where she was standing, and within 10 or 15 feet of her; that he reached for his hip pocket, and started toward her when she ran into the house; that she had known defendant about 15 years, and that he was the person she then saw.

Blood stains were traced from near the southwest corner of the house to where deceased fell. He was lying on a broomstick, with a stone near his right hand. A bullet had passed into his body back of the shoulder blade and severed the aorta, and another had struck the house near the corner. East of the coalshed, back of the house, were several rows of corn, and south of the corn a tomato patch. Tracks of some one who had stood back of this corn were discovered at about 7 o'clock the next morning, some 75 feet southeast of the first trace of blood near the corner of the house. The defendant when arrested wore slippers, and these fitted the tracks mentioned and those of a person who had passed south in the alley and west on Avenue Nine West, over the railway, as described by Mrs. Shinofield and Mrs. Risney, onto the next street east (H. street), then along it north to the railway, and then southeast along it to F. street, north on F. street, and east along the alley, passing the rear of the house where defendant lived. A witness testified to observing a person enter this house about the time one might have reached it after making the circuit indicated by the tracks, and McCord to having seen defendant at an alley near the intersection of Avenue Eight West and D. street (east of defendant's house) at about 12 o'clock, and walk toward home with his father, who had been walking with McCord. It should be added that there was evidence tending to contradict that of the threats, to show that Mrs. Risney had made statements out of court differing from her testimony, and that she had not done so; that a revolver was not in defendant's possession, as related by Maud Barrett; that defendant's son wore the slippers during the time in question, and defendant was barefooted, and the reverse; that Maud did not tell, in defendant's presence, of seeing her father at Mrs. Barrett's house, and that defendant was at his parent's house in bed when the shooting occurred. The witnesses are agreed that defendant was not at the scene of the tragedy after it happened, and that the moon was shining brightly. Such is the outline of the evidence. That introduced by the state points unerringly, as the jury might have found, to the defendant as the perpetrator of the offense. Some one, other than deceased, was in the rear of Mrs. Barrett's house. The testimony of Samuel Barrett that defendant was that person is strongly corroborated by that of Mrs. Shinofieldand Mrs. Risney, and the footprints correspond with defendant's slippers.

[1][2] The credibility of the witnesses was for the jury to pass on, and, moreover, if defendant and deceased were on friendly terms, as the defense undertook to prove, it is scarcely conceivable that he could have remained at home away from the scene of the tragedy. The jury might have concluded that he was at emnity with deceased, because he believed the latter had encouraged his prosecution for another offense (see State v. Brown, 146 Iowa, 113, 124 N. W. 899), that he had repeatedly threatened his life, had armed himself with a deadly weapon, and, with knowledge that deceased was about Mrs. Barrett's house, had gone there for the purpose of executing his threats, and did so. The verdict has ample support in the evidence.

[3] 2. At a former trial of this cause, one Valentine had testified that as sheriff of the county he had received the accused into custody, and at that time he wore the slippers mentioned. The state introduced evidence on this trial, showing that Valentine could not be served with a subpœna, and was at Hot Springs, Ark. Thereupon the official reporter was allowed to read the testimony of the witness, as given at the former trial, from his shorthand notes then taken and properly preserved. This was authorized by section 245a, Code Supp., but it is contended that it was in violation of that portion of section 10, art. 1, of the Constitution of Iowa, which accords to persons in all criminal prosecutions and cases involving the life or liberty of the individual the right to be “confronted with the witnesses against him.” The current of authority is that the testimony of a witness who has since died, given in a preliminary hearing or in a former trial, may be given in evidence without violating this provision of the Constitution, and this court has so held. State v. Fitzgerald, 63 Iowa, 268, 19 N. W. 202;State v. O'Brien, 81 Iowa, 88, 46 N. W. 752;State v. Kimes, 132 N. W. 180. The grounds on which courts reach this conclusion differ somewhat. Some argue that the construction is necessary to avoid the failure of justice (Marler v. State, 67 Ala. 55, 42 Am. Rep. 95), others that the constitutional provision is but declaratory of the common law, under which the practice was allowed (State v. McO'Blenis, 24 Mo. 402, 69 Am. Dec. 435), and still others that the requirement of the Constitution has been met by being confronted by the witness, and having had an opportunity to cross-examine at the preliminary hearing or formal trial.

[4] Prof. Wigmore, after reviewing the history of the hearsay rule and of the right to cross-examine, concludes that: “Confrontation is, in its main aspect, merely another term of the test of cross-examination. It is the preliminary step to securing the opportunity of cross-examination; and, so far as it is essential, this is only because cross-examination is essential. The right of confrontation is the right to the opportunity of cross-examination. Confrontation also involves a subordinate and incidental advantage, namely, the observation by the tribunal of the witness' demeanor on the stand as a minor means of judging of the value of his testimony. But this minor advantage is not regarded as essential,...