State v. Coleman

• Decision Date: 23 June 1939
• Docket Number: No. 44583.,44583.
• Citation: 285 N.W. 269,226 Iowa 968
• Parties: STATE v. COLEMAN et al.
• Court: Iowa Supreme Court

226 Iowa 968

285 N.W. 269

STATE

v.COLEMAN et al.

No. 44583.

Supreme Court of Iowa.

April 5, 1939.

Rehearing Denied June 23, 1939.

Appeal from District Court, Marion County; Norman R. Hays, Judge.

Indictment against the defendants accusing them of murder in the first degree for the killing of one Conrey. The defendants entered pleas of not guilty. On the trial they were found guilty of murder in the second degree. The court sentenced Lee Coleman to forty years at Fort Madison; and his wife, Oral, to thirty years in the women's reformatory at Rockwell City.

Reversed.

Thomas J. Bray, of Oskaloosa, for appellants.

Fred D. Everett, Atty. Gen., Jens Grothe, Asst. Atty. Gen., and Clarence A. Kading, Co. Atty. of Marion County, and Clifford C. Heer, both of Knoxville, for appellee.

SAGER, Justice.

It will not be possible, nor, in the light of the conclusion herein announced, is it necessary that we examine specifically the multitude of errors asserted in the argument of the defendants. Many of these will doubtless be avoided on another trial. As is to be expected, there is much contradiction in the stories of the witnesses for the state and of those for the defendants. In matters of conflict properly for the consideration of the jury, their findings are accepted for the purposes of this opinion.

The following testimony of Leland Moon, a student of the high school journalism class, who was near when the incidents out of which this case arose happened, gives a temperate summary of the state's case. We quote:

“I saw two men and a woman walking there on the sidewalk abreast. I first observed them in front of Speed's Drug Store, which is the first door west of Nieburg's store. I did not observe them doing anything out of the way at all. They were not talking loud enough so that you could hear them. They were not making any loud noise. They were not creating any disturbance. They were not bothering anybody. After they passed Conrey, he said, ‘Get that fellow off the street.’ The first thing I remember is that Conrey hit Coleman and knocked him down. At the time Coleman went down he was just a little west of the door of the pool hall. Before the scuffling began, Conrey was standing a little east of the pool hall door. I do not remember what Conrey did while Coleman was down. I was writing the notes for my story and I didn't see them. I was in front of Nieburg's store when I was doing my writing. When Coleman got up they began struggling again. Coleman and Conrey continued to scuffle there for five or ten seconds and then I saw Conrey go down. When Conrey went down, he was ten or fifteen feet west of the pool hall door, in front of Nieburg's. As they scuffled, naturally they went west. I heard nothing said there at all.”

And for defendants this, from the testimony of Walter Rice who was with them before and at the time, gives a general and fairly accurate view of the testimony in behalf of the appellants. Rice testified:

“We walked along the street like ordinary every-day people. There were probably six or seven people along the street besides us three in that block. At that time I did not know Conrey, or Maddy, or Huffman. As we were along about Nieburg's Variety Store, I heard somebody say something about getting off the street and Lee Coleman said something about we had just as good a right on the street as he had. We didn't take but a few steps until somebody hit Coleman and knocked him down. The person who knocked him down came in from across the walk on Mrs. Coleman's side. It looked like he hit Coleman on the side of the head or face. Before that time Coleman had not hit anybody and had not appeared to be striking at anybody. Prior to that time Coleman had not turned around. When he was struck, Coleman staggered to his knees west three or four feet. I saw him get up. Conrey was pretty close to Coleman when Coleman got up. They were face to face. Coleman and Conrey both had their hands in the air just before Coleman hit Conrey. Just after Conrey went down, I heard Mrs. Coleman say for him to let loose of her foot. I did not see Mrs. Coleman kick him after he was down and did not see her kick or strike at him before he went down.”

It is perhaps unnecessary to say that other witnesses differed in greater or less detail from that of these two, some seeing more than others, and some showing a greater or less degree of bias. In addition to the testimony of Moon on behalf of the state, it should be stated that witnesses testified that the defendant Oral Coleman entered into the melee and kicked Conrey, the deceased, when he was down. The record discloses no previous contentions of quarrels between Conrey and these defendants, nor earlier contacts, except on one occasion about two or three weeks before, than the happenings around which this case revolves.

After what will be referred to as the fight, the officer Conrey got a night-stick and followed the defendants to a hotel to which they had proceeded. Some altercation ensued there, and in its progress Conrey struck Coleman a severe blow in the head. At that time too, defendant Oral, according to the state's witnesses, entered into the conflict with profane speech. Except for the use of his club by Conrey, and of fists and perhaps defendant Oral's foot, nothing but verbal conflict took place. Following their arrest the defendants were lodged in jail, and later indicted for murder.

[1] As one ground of complaint, defendants say that the court erred in refusing to set aside the indictment because a person not authorized thereto by law was in the grand jury room while the question of indictment was being considered. The record shows that the person so present was an assistant county attorney duly appointed by the court upon orders entered of record. Since the county attorney may appear before the grand jury under Code, § 13706, and the court may appoint assistants under section 5243, we find no error here.

Defendants complain that there was error in overruling their challenge to the juror, Mirtie Niles. While this challenge should have been sustained in the opinion of the writer, it calls for no extended attention here. Mirtie Niles did not sit, having been removed by one of defendants' strikes. State v. Reed, 201 Iowa 1352, 208 N.W. 308, tends strongly to support appellants' argument that it was error to compel them to use one of their strikes. We are not called on now to analyze this case.

Division III of defendants' argument is a broadside criticism of the rulings of the court on different matters. Errors under this head are numbered from 1 to 13, and each number complains of one or more rulings. We note some of them for the purpose of indicating their general character, and with the thought of pointing out views which may be of assistance when this case is tried again. We might say in passing that the record leaves somewhat of an impression that the court was rather strict in some of its rulings against the defendants.

[2] As error under one group, defendants complain that there was error in permitting evidence showing that the defendant Lee Coleman had drunk a certain quantity of alcoholic liquor shortly before the incidents herein referred to occurred. This consisted in showing that the defendant had half a pint of whiskey with him that afternoon and that he had taken one or two glasses of beer. Likewise as a part of the same general subject, the court permitted evidence of the production by Coleman of this whiskey bottle and of its being offered to witness Beard. We are of the view that there was no error in admitting this testimony. While it is not claimed the defendant was intoxicated, the admission of testimony as to the general condition, appearance and manner of the defendant at a time so near the occasion of the encounter with Conrey was both relevant and material.

[3] Defendants complain of the ruling of the court in allowing the witness Hunt to testify that about two or three weeks before the occasion involved here, he, as marshal of the town of Knoxville, and Conrey, the deceased, observed a disturbance in which the defendants were engaged. He was permitted to testify that the Colemans were engaged in a fight and that he, the witness, asked certain bystanders if they would take the defendant home because the defendant Lee at that time was too drunk to drive a car. Defendants objected on the ground that this was incompetent, irrelevant, immaterial and prejudicial. This objection was overruled. It should have been sustained.

The claimed purpose of the state was to show that Conrey then and there gave evidence of his official position as policeman, and that Coleman, when he had the fight with Conrey on March 17th, knew that he was dealing with a peace officer. Conceding that this purpose was legitimate, there was no necessity for permitting the narration of the details to the extent of showing the commission of a separate crime; nor warrant for the admission of conversation with third parties which by no circumstances could have any bearing on the case on trial, except to prejudice the defendants.

[4][5][6][7] Defendants' complaints, under errors 5, 6, 8 and 9, grouped under Division...