State v. DiLlon

• Decision Date: 09 June 1888
• Parties: STATE v. DILLON.
• Court: Iowa Supreme Court

74 Iowa 653

38 N.W. 525

STATE

v.DILLON.

Supreme Court of Iowa.

June 9, 1888.

Appeal from district court, Clinton county; A. J. LEFFINGWELL, Judge.

On the 10th day of May, 1887, one Timothy Mullany received a wound, from the effects of which he died some two days later. Appellant and one Richard Kelly were jointly indicted for the alleged murder of said Mullany. Appellant was tried separately, and convicted of the crime of murder in the second degree. He was sentenced to imprisonment at hard labor in the state penitentiary at Anamosa for the term of 25 years, and from that judgment he appeals.Walter I. Hays, D. J. Darling, J. S. Darling, and A. L. Schuyler, for appellant.

A. J. Baker, Atty. Gen., A. Howat, and L. A. Ellis, for the State.

ROBINSON, J., ( after stating the facts as above.)

1. Two witnesses for the state were permitted to testify that, after Mullany was wounded, the defendant and another person were brought into his presence, and that Mullany then said that defendant was the man who had cut him. Appellant insists that the court erred in admitting this testimony, for the reason that the statement of Mullany was not a dying declaration within the meaning of the law, nor was it a part of the res gestœ. We assume that the evidence was admitted to show the demeanor and statements of defendant when accused by the deceased, and for that purpose it was admissible. State v. Nash, 10 Iowa, 82.

2. Defendant attempted to show, by a number of witnesses who had not been called by the state, that they had testified before the grand jury which returned the indictment upon which defendant was tried. Evidence offered for that purpose was excluded. It is urged by appellant that it was the duty of the state to place upon the stand all the witnesses examined by the grand jury, and that its failure to do so might be proven to show “the animus of the prosecution, if for nothing else.” It may be conceded that it was the duty of the state to show the real facts of the case so far as it was able to do so, and that it should not knowingly ask the conviction of an innocent person; but we know of no rule of law which requires the state to produce as witnesses all persons who may have testified before the grand jury. The facts which some of them would testify to may be immaterial, or may have been sufficiently established by other means, or the state may have good reason to question their truthfulness. Hence it follows that the failure of the state to produce all witnesses who testified before the grand jury is not a wrong, and creates no presumption of wrong. State v. Middleham, 62 Iowa, 153, 17 N. W. Rep. 446.

3. Appellant complains of the refusal of the court to allow proof of the fact that he was informed of the nature of the wound inflicted on deceased a short time after it had been received. The record discloses no facts which made such evidence proper, and we think there was no error in excluding it.

4. Complaint is also made of the ruling of the court in permitting witnesses to testify that they saw no injuries upon the person of defendant at the time and soon after he was arrested. Defendant had claimed that the cutting was done during an affray in which he had been knocked down, receiving certain injuries. It was certainly competent to prove that he showed no evidence of having received any injury, so far as observers could see, and we think there was no error in the ruling.

5. The appellant complains of the ruling of the court in refusing to give an instruction in the following language: “The theory of the prosecution upon the evidence is that Mullany was cut by Dillon at or near the corner of Seventh avenue and Second street, without there having been any preceding fight, except right then and there; and its evidence has been offered to support this theory. If you find from the evidence and believe that there had been a preceding fight or quarrel, between the parties engaged in the transaction, further east on Seventh avenue, and that what took place at or near the corner was a continuance of it, and that the said evidence upon the part of the state only covers the latter part of said fight, then the evidence for the state will not justify you in finding any verdict of guilty of any offense above manslaughter, and of that only in the event that you find from the evidence that said Dillon was not defending himself, as explained to you in the charge of the court.” There was no error in refusing this instruction. If it be conceded that it correctly represents the theory of the state, it does not correctly state the law. Whether or not a murder could have been committed in the affair in which the wound which caused the death of Mullany was inflicted, would depend upon the circumstances under which the wound was received, and the purpose and intent with which it was inflicted. The jury may have found that defendant was the aggressor in all the transactions involved in this case, and that what he did was with a malicious intent. The evidence offered was not of such notice and import as to justify the instruction in any respect. State v. Morphy, 33 Iowa, 276.

6. Much complaint is made of the fifteenth paragraph of the charge to the jury. It is lengthy, and does not in all respects clearly express the legal proposition which it seeks to...