State v. Cather

• Decision Date: 06 October 1903
• Citation: 96 N.W. 722,121 Iowa 106
• Parties: STATE OF IOWA v. THOMAS CATHER
• Court: Iowa Supreme Court

96 N.W. 722

121 Iowa 106

STATE OF IOWA v. THOMAS CATHER

Supreme Court of Iowa, Des Moines

October 6, 1903

Appeal from Marshall District Court.--HON. GEORGE W BURNHAM, Judge.

DEFENDANT was indicted for an assault with intent to commit murder, and was convicted of the crime of an assault with intent to commit manslaughter. From the judgment and sentence imposed he appeals--Reversed.

REVERSED.

J. L Carney for appellant.

Chas W. Mullan, Attorney General, and Chas. A. Van Vleck, Assistant Attorney General, for the State.

OPINION

DEEMER, J.

It is claimed that when the assault was committed, defendant was so drunk as to be incapable of forming an intent. His counsel offered witnesses to prove his condition in this respect, and we extract from the record the following, which presents the first question relied upon for a reversal: "Q. Was Cather noticeably intoxicated? (Objected to as incompetent, irrelevant, and immaterial, and asking for the opinion or conclusion of the witness.) Court. I suppose he can state his appearance and what he did, and the jury must determine whether he was intoxicated, or something else. Defendant excepts. A. I should judge he was pretty drunk. (State moves to strike out the answer.) Court. Strike it out. Defendant excepts. Q. State what his condition was as you judged from his appearance? (Objected to for the same reasons.) Court. Sustained. The jury must determine that. Defendant excepts. A. I heard he and two other fellows quarreling as to what had become of the last bottle of whisky they had. Q. State whether or not he talked as a drunken or intoxicated person? (Objected to as asking for a conclusion of the witness, and calling for no fact.) Defendant's counsel. I think it is perfectly proper for the witness to state his condition. Court. No: it is for him to tell his appearance, and the jury must determine his condition. Defendant excepts. Q. From his talk, can you give us the way in which he talked? Did it indicate whether or not he was intoxicated? A. I think he was. (Objected to as incompetent, immaterial, irrelevant, and asking for an opinion. Sustained. Defendant excepts.) Q. How did he talk--as a sober or a drunken man? (Objected to for the same reasons. Sustained. Defendant excepts.) Q. State whether or not his language indicated he was under the influence of liquor? (Objected to for the same reasons. Sustained. Defendant excepts. ) Court. You each time ask for his conclusions. He can state what he did and said. Defendant excepts. Q. What would you judge from his appearance and talk as to his being under the influence of liquor? (Objected to as incompetent, etc. Sustained. Defendant excepts.) Q. Was he very intoxicated, or not? (Objected to, and objection sustained.) State how intoxicated he was? (Objected to and sustained.)" Many more questions of like import were propounded, and objections thereto were sustained. These rulings were manifestly erroneous. It is well settled that a witness may state whether or not another was intoxicated at a particular time, without narrating the facts on which he bases his opinion; and it is also permissible for a nonexpert witness to state how far another was affected by intoxication. State v. Huxford, 47 Iowa 16; Yahn v. City of Ottumwa, 60 Iowa 429, 15 N.W. 257; State v. Wright, 112 Iowa 436, 84 N.W. 541; Bailey v. City of Centerville, 108 Iowa 20, 78 N.W. 831. While tacitly admitting error in these rulings, the Attorney General contends that the witnesses were permitted to give in evidence the defendant's appearance and demeanor, at all times material to the inquiry, and hence no prejudice resulted. This argument entirely overlooks the reason given for the admission of such evidence. The acts, conduct, and demeanor of a person under the influence of intoxicants cannot be accurately reproduced, and for this reason the question of intoxication is better determined from the direct answers of those who saw him, than from any description of his conduct. Rogers on Expert evidence, sections 3, 4. The rulings were clearly erroneous, and the presumption of prejudice arising therefrom has not been overcome.

II. Defendant claimed that his antagonist was armed with a club, and that whatever he did was in defense of his person. He offered to show that shortly after the encounter a club was found at or near the scene of the conflict, but this the court would not permit him to do. We think the evidence should have been received.

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