State v. Cater

• Decision Date: 19 January 1897
• Citation: 69 N.W. 880,100 Iowa 501
• Parties: STATE v. CATER.
• Court: Iowa Supreme Court

100 Iowa 501

69 N.W. 880

STATE

v.CATER.

Supreme Court of Iowa.

Jan. 19, 1897.

Appeal from district court, Winneshiek county; E. E. Cooley, Judge.

The defendant is charged with the murder of George Wemett. He was tried, found guilty, and sentenced to be imprisoned for life in the state penitentiary, and appeals. Reversed.John B. Kaye and J. J. Cameron, for appellant.

Milton Remley, Atty. Gen., E. P. Johnson, Co. Atty., and Jesse A. Miller, for the State.

KINNE, C. J.

1. The court is charged with error in not sustaining the defendant's motion for a new trial on the ground of newly-discovered evidence. Under the statute newly-discovered evidence is not ground for granting a new trial in a criminal case. State v. King (Iowa) 66 N. W. 735;State v. Watson, 81 Iowa, 380, 46 N. W. 868;State v. Whitmer, 77 Iowa, 557, 42 N. W. 442;State v. Bowman, 45 Iowa, 418.

2. Complaint is made of the action of the court in permitting the attorneys for the state, on cross-examination of the defendant's witnesses the Cater girls, to examine them regarding certain statements made by them before the grand jury. It is urged that the ruling was wrong, because the minutes of the testimony containing such statements were not returned with the indictment in this case. The statements complained of were not made in this case by said witnesses, but were made in the case of the state against this defendant, in which he was charged with the murder of his wife. The testimony therefore could not be with the indictment in this case. There was no error in the ruling.

3. It is alleged that counsel for the state, in an argument to the jury, stated his belief in the defendant's guilt, and that is said to be error. We discover nothing in the record to show that the statement complained of was made, and, if it was, it was not error. State v. Beasley, 84 Iowa, 83, 50 N. W. 570.

4. The court is said to have erred in not rebuking or denouncing the clapping of hands of the audience, which is said to have followed the conclusion of the argument of one of the counsel for the state. Counsel for the defendant swear that this act of the audience was not stopped, or rebuked by the court, or the sheriff. On the other hand, the sheriff states in his affidavit that he instantly checked the clapping of hands. The clerk swears that both the court and the sheriff immediately stopped the clapping of hands, and the county attorney says it was at once stopped. In view of this condition of the record, it cannot be said that there was any error.

5. In the instructions the court told the jury that if the defendant was guilty of any crime he was guilty of murder in the first degree. He submitted to the jury forms of verdict accordingly. No instructions were given touching any lower degree of crime. Counsel refer to the statute, Code, §§ 4465, 4466. These sections provide that upon an indictment for an offense consisting of different degrees the jury may find the defendant not guilty of the degree charged, and guilty of any degree inferior thereto, and that the defendant may be found guilty of any offense the commission of which is necessarily included in that charged in the indictment. But we have repeatedly held that the statute has no application when the facts show that the defendant is either guilty of the crime charged or not guilty, and that in such a case it is not incumbent upon the court to charge as to the lower grades of crime. State v. Cole, 63 Iowa, 695, 17 N. W. 183;State v. Froelick, 70 Iowa, 213, 30 N. W. 487;State v. Casford, 76 Iowa, 330, 41 N. W. 32;State v. Munchrath, 78 Iowa, 268, 43 N. W. 211;State v. Perigo, 80 Iowa, 37, 45 N. W. 399;State v. Sterrett, 80 Iowa, 609, 45 N. W. 401;State v. Sigg, 86 Iowa, 746, 53 N. W. 261. It is manifest that in this case, if the defendant is guilty, it is of the crime of murder in the first degree.

6. Coroner Gibson testified for the state touching a conversation had with the sheriff, in the presence of the defendant, relating to what was said to the sheriff as to keeping the defendant's shoes, and as to who had since retained possession of the shoes. There was no error in this. The shoes were introduced in evidence in connection with evidence relating to the tracks.

7. Certain evidence of Dr. Emmons, to the effect that Wemett did not have a coat on when he and the doctor were together the evening prior to the killing, is complained of as not proper cross-examination. The record shows that no objection was made to the question when asked. The objection was made after the question had been answered. The defendant could not sit by and permit this evidence to be given without objection, and then, if he deemed it unfavorable to him, interpose an objection. State v. Moore, 25 Iowa, 128;State v. Benge, 61 Iowa, 658, 17 N. W. 100.

8. It appears that the counsel for the state, on the cross-examination of Lizzie Cater, used a copy of minutes of her testimony taken in the case of the state against her father, in which he was charged with the murder of her mother, for the purpose of showing that she had formerly made statements in conflict with those made by her upon the trial of this case. We see no proper objection to such use of the minutes. It was proper to show that she had made statements at another time and place different from what she was then testifying to, and the minutes could be used for that purpose. No attempt was made to introduce them in evidence. Nor can the defendant complain that the court did not stop the proceedings, and furnish the defendant's counsel with a copy of said minutes.

9. Another error we deem it necessary to discuss is as to the court's ruling excluding the testimony of Dr. Roome with reference to the fact that a pistol fired in close contact with a person, and at him, might not burn the flesh, or burn or singe the hair. The objection of the state to the questions was not that the doctor was not shown to be competent to give such an opinion as was asked for. The objection, which was sustained, was that the evidence was immaterial, incompetent, and irrelevant, unless it was shown that it was the same weapon that was found by the body of the deceased in this case. If it had been objected to because the weapon asked about was not shown to have been of the same caliber, it might have been good. But to limit the inquiry to the particular revolver found by the side of the deceased was clearly error. The attempt of the defense was to show that Wemett came to his death by a shot from his own hand, and it was proper to show the effect of a revolver shot upon a person, as to burning the flesh, or hair, when fired by one holding it a short distance from the body hit. We do not hold that the doctor had been shown competent to give an opinion. No such objection was made, and as to the objection in fact made the ruling was erroneous.

10. Before considering the objections addressed to other instructions given, and the alleged error in refusing to give instructions asked, we must set out as briefly as may be the more important facts as to the killing of Wemett, as to which there was evidence introduced upon the trial. Burr Oak is a small village in Winneshiek county, and is situated about 13 miles from the county seat. The defendant lived in the village, owned and operated a butcher shop and meat market, and peddled meat in the country surrounding the village. George Wemett had been in the employ of the defendant in his business until a week or two prior to September 1, 1894. After he had ceased to work regularly for the defendant, he kept his clothes at the defendant's house, but did not board there. He also assisted the defendant occasionally after his regular employment had ceased. Wemett was about 26 years old, weighed 180 pounds, was in good health, generally of cheerful disposition, not quarrelsome, and not known to have any enemies. He used alcohol and other intoxicants more or less as a beverage; often carried a bottle of it in his pocket; was considerable of a coward, and usually carried a revolver. He had for a time prior to his death been keeping company with a daughter of the defendant, which association was objectionable to the defendant because of Wemett's habits as to the use of liquor. Defendant's wife seems to have stood by the daughter, and it also appears that because thereof, and because of the attempt of the defendant to dispose of some property, he had had some trouble with his wife. Wemett was found dead, near the schoolhouse, on the morning of the 2d of September. There was a bullet hole in his head behind his ear, a revolver lying by him, and a bottle of alcohol in his hip pocket. The evening before, Dr. Emmons called at the defendant's house for Wemett, and he rode three miles or over in the country with him. They both returned to the village, and to the doctor's place, at about 8 o'clock, and Wemett helped unhitch the team, and run the buggy in the barn. Wemett then left. He had not been drinking. He was seen to go from the doctor's place towards the post office, and shortly after was in a store with the defendant. About half past 8 he was seen outside of and near the same store. He then had no coat on, had not been drinking, and did not appear to have had any bottle of liquor or revolver about his person. Soon after, he made inquiry of a man for the defendant, wanted to know where he was, and this was the last seen of him until his dead body was found the next morning. The defendant was seen the same evening at a store at 8 o'clock, and again at about half past 8. At about 15 or 20 minutes to 9 he was seen walking in the direction of the schoolhouse. It was about 40 rods from the point where the defendant was last seen walking towards the schoolhouse to the place where the body of Wemett was found. It appears also that the defendant was looking for Wemett after the latter returned to the village with Dr. Emmons. At about 15 minutes after the defendant was seen...