State v. Ebelsheiser, 47509

• Decision Date: 01 August 1950
• Docket Number: No. 47509,47509
• Citation: 242 Iowa 49,19 A.LR.2d 865,43 N.W.2d 706
• Parties: , 19 A.L.R.2d 865 STATE v. EBELSHEISER.
• Court: Iowa Supreme Court

Page 706

43 N.W.2d 706

242 Iowa 49, 19 A.L.R.2d 865

STATE v. EBELSHEISER.

No. 47509.

Supreme Court of Iowa.

Aug. 1, 1950.

Joe W. Griffin, of Ottumwa, F. M. Beatty, of Sigourney, and Life & Davis, of Oskaloosa, for appellant.

Robert L. Larson, Attorney General of Iowa, Don Hise, First Assistant Attorney General, and Samuel O. Erhardt, Wapello County Attorney, Ottumwa, for appellee.

MANTZ, Justice.

Forty-three errors are assigned covering nearly twenty printed pages. They are argued in twenty-six divisions. They overlap and repeat and as usual all do not merit the same consideration.

Defendant was convicted of second degree murder of his sister Dorothy's husband, Earl Robertson. The Robertsons and Mrs. Robertson's widowed mother, Mary Ebelsheiser (87), lived on the Ebelsheiser home farm a mile or two south of Hedrick in Wapello County. For convenience we call it the Robertson home. The widow Ebelsheiser owned a life estate in it. Dorothy's sister, Mary Roop, lived in Hedrick, defendant at Martinsburg, about three miles east of Hedrick, and Walter, his brother, at Blandenburg, some ten miles away to the southeast.

On the afternoon of July 27, 1948, Dorothy and her sister, Mary, had a fight at the Robertson home. There had been trouble over family affairs, not necessary to go into in detail. Thereafter Earl and Dorothy drove to Ottumwa and filed information charging Mary with assault.

That evening the sheriff and deputy drove out to the neighborhood with the warrant for Mary's arrest. At the Robertson home they met defendant who told them the Robertsons were not there. As they left the place however they met Earl and Dorothy in the road and had some conversation from which they learned Mary Roop was in the house, whereupon they returned to serve the warrant.

Pursuant to some telephoning, defendant had come to the Robertson home, found his mother was all right, learned from Mary Roop of the trouble the sisters had had in the afternoon, and that she wanted him and Walter to 'straighten' it out. He and Mary had then driven into Hedrick to her home and defendant caught a ride to his home in Martinsburg where he changed his clothes and put a gun in his pocket. A neighbor drove him back over to the Robertsons. This was before the arrival of the officers.

Meanwhile Walter, down at Blandensburg, had received a message to come to his mother's place. He first drove to defendant's home at Martinsburg, learned defendant was already gone, and then drove over to his mother's where he arrived after Mary and defendant had left. The mother was alone. Mary soon came in and he learned of the afternoon fight between the sisters. Thereafter defendant arrived. Mary made some supper arrangements and Walter drove to Hedrick for sandwiches.

The sheriff and deputy arrived in Walter's absence. The warrant was served on Mary after Walter returned and Mary then went to her own home in her car with the deputy sheriff where arrangements were made for her bond. The sheriff followed leaving defendant and Walter there.

After talking a short time with their mother the men drove to Hedrick (leaving their mother alone) and had supper at the Roops. They then came back out to the Robertson home. Earl and Dorothy had not yet come in. The men visited with their mother in the living room.

Dorothy and Earl arrived later, she remaining in the kitchen, Earl first going upstairs. The evidence is of course conflicting as to events after the brothers called Dorothy into the living room and Earl came down and joined them. We are not trying the case de novo but give enough of the background to enable us to consider the assigned errors. Only decedent, Dorothy, the two brothers and aged mother were present. Only Dorothy and the two brothers testified. It was for the jury to determine who was the aggressor in the events that followed.

It seems undisputed that Walter left his own chair and went across the room to Earl's chair. Dorothy says he 'rushed over to Earl's chair with his fist doubled up and hit Earl in the side of the head' and that Earl reached for his own gun in his pocket. The other two witnesses say Walter 'just walked' across the room gesturing with his finger and that Earl pulled his gun, stuck it into Walter's ribs (or stomach), clicked it and then swung and pointed it at defendant.

In the ensuing melee defendant fired the fatal shot. There was some personal encounter in which all four (not including the mother) participated. According to Dorothy's account, even after Earl fell the brothers dragged him out in the room and defendant kicked him in the head and face saying 'he is not dead yet.'

Defendant testified that when he fired, Earl's gun was pointed at him and he was 'terribly scared'; that after he fired Earl came at him and that they struggled, that Earl struck him over the head with his (Earl's) gun and that Walter finally disarmed Earl while holding Dorothy off.

Subsequently a doctor was called and Earl was found to be dead or dying. It was then shortly after eleven o'clock.

I. When the sheriff arrived on the scene after the tragedy he asked defendant and Walter where the gun was that killed Earl Robertson. He testified he received a gun from each. On cross-examination defendant sought to show that when Walter handed the witness the gun he (Walter) said it was Earl's gun. The court sustained objection to it.

Defendant also sought to go further in cross-examination of the sheriff and to elicit from him the entire story of what defendant and his brother told him during his investigation as to what had occurred that evening. Objections were sustained on the ground the statements were in part hearsay and in part self-serving.

Complaint is now made of these rulings. We do not understand defendant to contend the statements were part of the res gestae. He relies rather on the rule, both common law and statutory, sections 622.19 and 622.20, Codes 1946 and 1950, I.C.A., that when part of an act or declaration or conversation is shown on direct examination the rest may be inquired into and shown on cross-examination. Reeves v. Lyon, 224 Iowa 659, 277 N.W. 749, citing Baker v. Des Moines City Ry. Co., 199 Iowa 1256, 1258, 202 N.W. 762, 763.

The record is not clear enough to permit us to determine how much of the attempted cross-examination related to the transaction in which the sheriff demanded and received the guns. We think whatever was said or done at that time as a part of or explanatory of the act of delivering the guns could be properly drawn out on cross-examination. See the Code sections above cited and Courtwright v. Deeds, 37 Iowa 503, 514, 515, which refers to section 3992, Revision of '60, identical with present sections; see also 70 C.J. 622, 623; and 58 Am.Jur., Witnesses §§ 629, 632 (notes 18, 19).

However defendant and his brother later testified fully as to the identity of the guns and as to the events leading up to the shooting. It is inconceivable therefore that any prejudicial error resulted from the limitations placed on the cross-examination of the sheriff. See as bearing on the question: State v. Hofer, 238 Iowa 820, 836, 28 N.W.2d 475; 58 Am.Jur., Witnesses, § 671; State v. Sedig, 235 Iowa 609, 616, 16 N.W.2d 247.

II. Complaint is made of the admission of the testimony of the sheriff and his deputy concerning their conversations with Earl Robertson out in the road some hours before the fatal event, to the effect that he (Earl) was afraid to go into the house when defendant and Walter were there and wanted the officers to get them away before he went in. This was shortly before Mary Roop's arrest.

The statements were admissible as part of the res gestae under well-recognized rules. State v. Jones, 64 Iowa 349, 17 N.W. 911, 20 N.W. 470; State v. Hessenius, 165 Iowa 415, 146 N.W. 58; L.R.A.1915A, 1078; State v. Giudice, 170 Iowa 731, 748, 153 N.W. 336, Ann.Cas.1917C, 1160; 32 C.J.S., Evidence, § 412, note 15, page 36; 22 C.J.S., Criminal Law, § 672.

In State v. Stafford, 237 Iowa 780, 23 N.W.2d 832, we discussed the res gestae rule and the elements that must exist to make the evidence admissible. We have no hesitancy here in holding the most essential element of spontaneity was present and the significance of the time element is inescapable.

III. In the early morning (about one o'clock) following the tragedy certain photographs were taken. Complaint is made of the admission in evidence of two of these; also of another posed picture taken several days later.

Exhibit P-7 showed the room and contents where the homicide occurred (including decedent's body) as they appeared when the photographer entered. A few minutes later exhibit P-8 was taken after the body had been turned face down. No objection is urged here as to exhibit P-7 but it is argued exhibit P-8 was inadmissible because of this change in condition.

The change in the position of the body was testified to clearly and must have been understood by the jury. Defendant cites 20 Am.Jur., Evidence, § 731, in support of his contention that the changed condition made this picture inadmissible. But the rule laid down there is carefully qualified in the last sentence of the section: '* * * the only practical rule would seem to be that the changes must not be such as to destroy the substantial identity and * * * should be carefully pointed out and brought to the jury's attention.' See also Coonley v. Lowden, 234 Iowa 731, 741-744, 12 N.W.2d 870; 32 C.J.S., Evidence, § 715, pages 621-623.

Exhibit P-9 was a picture of Dorothy Robertson as she appeared when the photographer came. It shows her face swollen and one eye blackened. She testified the condition of her face was due to a blow by defendant, administered immediately after the shooting while she was trying to help her wounded husband. The picture was admissible as illustrative and possibly somewhat corroborative of Dorothy's testimony.

Defendant argues it was calculated to excite passion and...