State v. Helm

Decision Date07 April 1896
Citation97 Iowa 378,66 N.W. 751
PartiesSTATE v. HELM.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from district court, Keokuk county; A. R. Dewey, Judge.

The defendant was indicted for the murder of Walter Clark. There was a trial which resulted in a verdict of guilty of murder in the second degree, and a judgment of imprisonment in the penitentiary for 18 years. Defendant appeals. Affirmed.C. H. Mackey, Woodin & Son, and Hamilton & Donahue, for appellant.

Milton Remley, Atty. Gen., and F. L. Goeldner, for the State.

ROTHROCK, C. J.

1. This is the second appeal by the defendant in this case. See 61 N. W. 246. It is not denied that the defendant killed Walter Clark by shooting him with a revolver. And it is not claimed that the shooting was accidental. In the trial from which this appeal was taken, as well as upon the former trial, the contention was that the killing was done in self-defense. The judgment was reversed upon the former appeal upon questions which are not now involved in the case. The tragedy occurred in the night-time on a public road in Keokuk county, near the residence of one Oliver Helm. The deceased and his brother, Byron Clark, and the defendant are cousins, and for many years resided on farms in the same neighborhood. The defendant was about 33 years of age at the time he took the life of Walter Clark. He had been married for some years, and was the father of four children. Byron Clark was then about 23 years old, and Walter Clark was younger, and both were unmarried. It appears that these persons were not on friendly terms. For some time before the fatal occurrence there had been quarreling, and some fighting, in the neighborhood; and it is to be inferred from the testimony of many of the witnesses that the community was largely made up of families who were related to each other, as uncles, aunts, cousins, and other family connections. There was what is called “bad blood” among them. In the examination of the witnesses in chief, the prosecution was permitted to introduce evidence, over the defendant's objection, relating to quarrels, fights, and difficulties before the homicide, between what appeared to be two contending factions in the neighborhood. It is urged that it was not competent to prove the details of these fights and disturbances by direct testimony. We do not think there was error in overruling objections to this line of evidence. The defendant appears to have been present on the occasions referred to, and took part either as an adviser or as an active participant. It is always admissible, in a trial for murder, to show previous ill feeling on the part of the defendant toward the deceased. The authorities cited by counsel for defendant on this proposition do not involve the question under consideration. They relate mainly to the cross-examination of witnesses to good character, and they merely reiterate the well-known doctrine that, in cross-examination, particular acts indicative of bad character should be excluded.

2. The defendant did not introduce any evidence for the purpose of showing that his previous reputation as an orderly and peaceable man was good before the homicide. The state introduced a number of witnesses in rebuttal who testified that his reputation was bad. And a number of witnesses were introduced by the state who testified that the reputation of the deceased as a peaceable citizen was good. All this evidence was introduced over the defendant's objection, and the ruling of the court in permitting its introduction is claimed to be erroneous. If this were all that pertains to this question, the judgment of the court should be promptly reversed. The overrulingof the objection to the evidence was a palpable violation of one of the fundamental rules of evidence, which is now everywhere recognized and enforced, and to which there are no exceptions in trials for criminal homicide. 3 Greenl. Ev. §§ 25-27. At the close of the introduction of this evidence, counsel for the defendant moved to exclude it, and the motion was overruled. But immediately after the introduction of all the evidence in the case the following order was made: “Gentlemen of the jury: Referring to the evidence offered by the state tending to prove the reputation of deceased for good order, and of the defendant for being disorderly, the same is withdrawn from your consideration, and you will withhold applying the evidence in any way, as far as possible; and the motion of the defendant to strike same out is sustained.” And in the general charge to the jury the following instruction was given: “Any and all evidence introduced by the state tending to prove that the reputation of Walter Clark for good order and peaceableness prior to the homicide was good, and also all evidence tending to prove that the reputation of the defendant for peaceableness and good order was bad before the homicide, is withdrawn, and you will disregard it, as having no weight whatever.” It is strenuously contended in behalf of the defendant that the withdrawal of the objectionable evidence from the consideration of the jury did not cure the error in admitting it. It is said that the direction or order made at the close of the evidence (being an instruction to the jury), and the instruction given in the general charge, are in conflict, as being inconsistent with each other, and that, as it cannot be determined which instruction the jury followed, the judgment should be reversed; and we are cited to the cases of State v. Shelton, 64 Iowa, 333, 20 N. W. 459, and State v. Keasling, 74 Iowa, 528, 38 N. W. 397. These cases announce the rule contended for by counsel. But we think there is no conflict or inconsistency between the two instructions under consideration. The last is in exactly the same line with the first, and is couched in more emphatic language. When both are considered together, they constitute an absolute direction that the evidence erroneously admitted must be entirely disregarded, and excluded from any consideration by the jury.

3. It is further urged that the instructions did not cure the error, because it was impossible for the jury to disregard the testimony of the witnesses. We admit that there is force in this objection. But the general rule is that, where evidence has been erroneously admitted, it may be withdrawn from the jury, and thus cure the error. It is said, however, that the case presents an exception to the rule, because the error was so serious that it could not be recalled by instructions, and we are cited to the cases of Martin v. Orndorff, 22 Iowa, 505;Wicks v. Town of De Witt, 54 Iowa, 131, 6 N. W. 176;Hall v. Railway Co., 84 Iowa, 316, 51 N. W. 150; and Stevens v. Ellsworth (Iowa) 63 N. W. 683. It is true that in Martin's Case there was a reversal because the plaintiff's counsel, in his argument to the jury, read the evidence taken on a former trial, and which was not introduced in evidence on the second trial. Counsel for the defendant objected, and the court permitted the reading as a part of the counsel's argument. The court afterwards instructed the jury not to consider anything read from the minutes of the evidence at the former trial. Reference is made in the opinion to some peculiar circumstances in the case. It is not stated whether the reversal was upon the ground that the error could not be cured by proper instructions. The real ground for a reversal in that case was the misconduct of counsel. If one of the counsel for the state in this case had persisted in reading the evidence on the former trial “as part of his argument in the...

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