State v. Clay

• Decision Date: 19 January 1937
• Docket Number: 43640.
• Citation: 271 N.W. 212,222 Iowa 1142
• Parties: STATE v. CLAY.
• Court: Iowa Supreme Court

271 N.W. 212

222 Iowa 1142

STATE v. CLAY.

No. 43640.

Supreme Court of Iowa.

January 19, 1937

Appeal from District Court, Johnson County; James P. Gaffney, Judge.

The appellant was tried and convicted of the crime of assault with intent to commit murder. From such conviction, he appeals.

Affirmed.

W. F Murphy, of Iowa City, and Frank W. Shaw, of Pocahontas, for appellant.

E. A Baldwin, Co. Atty., of Iowa City, and Edward L. O'Connor Atty. Gen., for the State.

STIGER, Justice.

On October 9, 1934, the grand jury of Johnson county, Iowa, returned an indictment against the defendant, Louis Clay, charging him with the crime of murder in that " the said Louis Clay in the county and state aforesaid, on or about, the 24th day of December, 1933, willfully, deliberately, premeditatedly and with malice aforethought murdered George J. Folsom." The defendant entered a plea of not guilty and upon trial to a jury he was convicted of assault with intent to commit murder and sentenced to imprisonment for thirty years, from which judgment this appeal is taken.

This is the second time this case has been before us on appeal. The opinion rendered on the first appeal is reported in 220 Iowa, 1191, 264 N.W. 77. The material facts of this case are fully set out in the former opinion and will not be repeated here. In that case we held that the witness Mabel Davis was an accomplice of the defendant, Louis Clay.

The defendant has assigned several errors as grounds for reversal. The appellee contends that the first three assignments cannot be considered by this court because of defendant's flagrant disregard of section 5 of rule 30. If this were a civil suit, these assignments of error would be disregarded. In a criminal case, involving a grave offense and severe penalty, a failure to fully comply with our rules should not deprive the defendant of a full and fair review of the case, if from the record the claimed errors can be ascertained. State v. Ingram, 219 Iowa, 501, 258 N.W. 186.

I.

Defendant's first ground for reversal is that the witness Byington was permitted over appellant's objection to testify regarding the attitude of deceased toward womankind. The witness after testifying that George J. Folsom and his two brothers and a sister had lived together for many years, none having married, and that after the death of his sister and brothers the deceased lived alone and never had a housekeeper, was asked what George J. Folsom's attitude toward women in general was.

" A. Well, his attitude generally was very adverse to society and very much so against women. I have never known him to associate with women during the last twenty-five or thirty years of his life."

Plaintiff was entitled to bring out some of the history and general background of decedent's life, and while the objection might well have been sustained as immaterial, no prejudice resulted to the defendant through the admission of this evidence. Defendant also claims that the court did not give an instruction limiting the effect of this testimony. No instruction was requested by defendant and the court was under no duty to give a special instruction on this testimony.

II.

Defendant complains of instruction No. 7. This instruction correctly stated to the jury the propositions that the state must establish beyond a reasonable doubt in order to sustain a conviction. The first proposition in this instruction is that, on or about December 24, 1933, George J. Folsom died as the direct result of an assault or assault and battery upon him in Johnson county. The defendant's claim, apparently, is that the instruction should not have been given because of the failure of the State to prove the corpus delicti. The State's witness, Mabel Davis, testified that the defendant choked the old gentleman until he was satisfied that he was dead. A physician testified for the defendant that if a person is strangled that the body starts to turn blue and that if death occurred while being strangled that this blue, or cyanotic condition, would remain and show on the body after death. The doctor also testified that if the deceased did not die while being strangled, that life and circulation of the blood would dissipate the blue condition, known as cyanosis. When the decedent was found on Christmas morning, there was no evidence of cyanosis. He also testified that death could occur during the assault from fright or exertion.

At the time of the death of Mr. Folsom, he was recovering from an attack of pneumonia which had impaired his heart. The witness Davis testified that Mr. Folsom struggled with Clay and pleaded with him to spare his life. The physician further testified that under the conditions there would be two probable causes of death, one from strangulation alone, the other being acute dilatation of the heart as a result of the exertion the heart was put to during the struggle.

The witness Davis also testified that after Clay had choked the deceased to death he propped the kitchen door open with a stick of stove wood so that it could not be closed. Mr. Folsom's body, when found, was frozen. The evidence was sufficient to carry to the jury the question as to whether George J. Folsom died as a direct result of an assault and battery made upon him by Louis Clay.

III.

It is alleged by the defendant that he was entitled to an acquittal because of lack of corroboration of the testimony of his accomplice, Mabel Davis. For corroboration of the testimony of Mabel Davis, the plaintiff relies on the record history of the ring, exhibit 4, which is substantially as follows: The ring was owned and in the possession of the deceased, George J. Folsom, and the family for several years prior to the murder. Mabel Davis testified that after Clay choked the old gentleman to death she saw him take, among other valuables, two rings, state's exhibits 4 and 5, which he hid in his mother's home; that she remained in the Clay home until they went to Waukegan, Ill., and that about two weeks after the murder Clay gave the rings to her and she wore them until she and Clay went to Waukegan; that at Waukegan she gave Clay the ring, exhibit 4, which he pawned.

The defendant admits that Mabel Davis gave him the ring at Waukegan and that he, accompanied by John Scott, pawned the ring to George Rockingham. Scott and Rockingham corroborate this testimony of the defendant.

The statement of Mabel Davis that she gave the ring to Clay at Waukegan and that he pawned it is corroborated. The question is whether this testimony satisfies the requirements of Code, § 13901, which reads as follows:

" A conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence which shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof."

If the testimony of an accomplice is corroborated by other witnesses in any material point tending to connect the...