State v. Elliott

• Decision Date: 12 June 1863
• Citation: 15 Iowa 72
• Parties: THE STATE OF IOWA v. ELLIOTT et al
• Court: Iowa Supreme Court

15 Iowa 72

THE STATE OF IOWA v. ELLIOTT et al

Supreme Court of Iowa, Des Moines

June 12, 1863

Appeal from Wapello District Court.

DEFENDANTS were indicted for burglary, in entering, in the night time the house of one Rambo, with intent to commit a felony. Trial and verdict of guilty, and they appeal.

Affirmed.

Hendershott & Burton for the appellant.

C. C Nourse, Attorney-General, for the State.

OPINION

WRIGHT, J.

To reverse this conviction three points are made:

First. That the Court erred in excluding certain testimony.

Second. In refusing an instruction asked by defendants.

Third. That the verdict was not warranted by the evidence, and that the Court erred, therefore, in overruling the motion for a new trial.

I. The defendants introduced, as a witness, the officer who made the arrest, who, in his examination, in chief, stated, without objection on the part of the State, that as he was bringing the prisoners to town, they passed Rambo's house; that Elliott wished to go in and see if the family would recognize him; that they went in and stayed about twenty minutes. Mrs. Rambo walked around in front of Elliott, looked at him and said she thought he was the man. The question was then asked by the prisoner's counsel: "What reply did Elliott make to the statement of Mrs. Rambo," which was objected to by the State, and the objection sustained. Appellants now insist that as a portion of the conversation, or what Mrs. Rambo said, had gone to the jury without objection, they were entitled to the reply; and especially as they proposed to prove that Elliott then promptly proclaimed his innocence and insisted that Mrs. Rambo was mistaken.

The rule that when part of a conversation is introduced, the other party is entitled to the whole of it, upon the same subject, does not apply. The testimony was elicited by the defendants. The witness was called by them. Nothing that the prisoner said had been elicited at the time the objection was interposed by the State. If there had been, then it might have been proper to have had it all, or to have excluded what had been given. It was incompetent, however, to thus get the declarations of the defendant before the jury, in his own behalf, from his own witness. It is not a case where a confession or admission is to be implied by the acquiescence or silence of the prisoner. The State does not pretend that the prisoner remained silent, or did not deny the imputation contained in the declaration of Mrs. Rambo. If this was claimed, or if the witness had been introduced on the part of the State, the fact that he denied what she said might have been proved.

Nor is the case of Dunham v. Simmons, 3 Hill 609, applicable, for there it is only held that, if testimony which is inadmissible, be objected to on untenable grounds, and the true ground be not mentioned, the latter will be deemed waived. In Judah v. Mieure, 5 Blackf. 171; the ruling is, that when statements of a third person are given in evidence, without objection, their admission cannot be afterwards assigned as error. Here there is no objection by the State that Mrs. Rambo's statements were admitted. The People v. Norton, 5 Selden 176, recognizes substantially the same rule as the case in 5 Blackford, and is equally inapplicable to the question now before us.

II. A witness, Mrs. Gray, testified to a certain conversation heard by her, between the prisoners, while they were confined in jail. After detailing what she heard, she says there was more said which she did not understand; sometimes she could hear them and sometimes not; that they conversed in a loud whisper, and said many things which she did not hear; but she had given the language as far as she heard it. As applied to this testimony, the court instructed the jury as follows: "While it is true that the declarations, conversations or statements of a party may be given in evidence against him, it is also true, generally, that the whole of such declaration or conversation should be given. That the law regards such evidence as being unsatisfactory and uncertain, when the recollection of the witness is not distinct as to what the exact words of the party were, or where the whole of the conversation, declaration or statement could not be or was not heard, or was not fully understood. But it is for the jury to say whether the witness recollected and stated the words that were spoken, or their substance, and what meaning is to be given by the use of such words under the circumstances. If the jury, in the examination of the testimony of Mrs. Gray, find that she did not hear all the conversation between the prisoners, and did not pretend to have understood all they said, her testimony on that account is entitled to much less weight than if she had heard and understood the whole of the conversation upon the same subject But it is for the jury to say whether she related the words or substance of the language used in the conversation, and whether such language was in relation to distinct facts, and how far it tends to prove defendants guilty."

The following instruction upon the same subject was asked and refused: "When a witness shows by his own evidence that he did not hear all of a conversation, and did not and could not understand all thereof, and gives in evidence only a part, such evidence is entitled to but little weight."

In refusing this instruction, the court did not err. As a proposition under some possible state of facts, it might be true. As applied to this case, it went too far. If a prisoner is heard to make an admission that he committed a crime, as to which there could be no pretense that he had justification, as that he was acting in self-defense or the like, it would not be true that evidence of such admission if well identified, was entitled to but little weight,...