State v. Helm

• Decision Date: 13 December 1894
• Citation: 61 N.W. 246,92 Iowa 540
• Parties: STATE v. HELM.
• Court: Iowa Supreme Court

92 Iowa 540

61 N.W. 246

STATE

v.HELM.

Supreme Court of Iowa.

Dec. 13, 1894.

Appeal from district court, Keokuk county; D. Ryan, Judge.

The defendant was accused by indictment of the crime of murder in the first degree, was tried by jury, found guilty of the crime of murder in the second degree, and was adjudged to be imprisoned in the penitentiary at Ft. Madison at hard labor for the term of 20 years. From that judgment he appeals. Reversed.C. H. Mackey and G. D. Woodin, for appellant.

John Y. Stone, Atty. Gen., and Thos. A. Cheshire, for the State.

ROBINSON, J.

On the 1st day of October, 1892, one Walter Clark was shot and killed by the defendant. The killing is not denied, but it is insisted that it was done in self-defense.

1. The shooting occurred a short distance east of Fremont, in Mahaska county, but in the county of Keokuk. The indictment was returned by the grand jury on the 7th day of October, 1892, and on the same day the defendant was arraigned and pleaded not guilty, and the cause was continued. On the first day of the November term of the court which commenced on the 22d day of the next month, the defendant filed a petition for a change of the place of trial from Keokuk county to some county of the district other than Mahaska county. The petition, as ground for removal, alleged excitement and prejudice against the defendant in the county, and was supported by his affidavit, the affidavits of his two attorneys and of three other persons. The affidavit of the attorneys was the only one which specified facts which tended to show excitement and prejudice. That described the place of the shooting, and alleged that there were numerous newspapers in the counties of Keokuk and Mahaska, nearly all of which had given what they claimed to be the facts of the case, and, as thus given, they showed that the defendant had deliberately prepared to shoot the deceased on the night he was killed; that the newspapers which had not published such statements were noncommittal; and that, in consequence of these facts, there was great excitement and prejudice against the defendant in both counties, and for that reason, deeming him unsafe in Keokuk county, the authorities had removed him for safety to the jail of Linn county, where he remained until it was thought safe to return him to Keokuk county. Numerous counter affidavits were filed, which fully contradict the allegations of excitement and prejudice. The affidavit of the sheriff was also filed. That shows that the defendant was removed from Keokuk to Linn county, in consequence of rumors of threatened violence to him, but that, the day after the removal, the rumors were ascertained to be without foundation, and that, after remaining in Linn county but four days, the defendant was returned to Keokuk county, in which he has since been kept. The showing for a change of the place of trial was not strong, and was fully rebutted by the counter affidavits. It is clear that the district court did not abuse its discretion in overruling the petition for a change. State v. Foster (Iowa) 59 N. W. 9;State v. Belvel (Iowa) 56 N. W. 548;State v. Kennedy, 77 Iowa, 211, 41 N. W. 609. The showing for a change of the place of trial considered in the case of State v. Crafton (Iowa) 56 N. W. 257, which is relied upon by the appellant, was much stronger than that made in this case.

2. G. W. Lafferty was appointed by the district court at the request of the county attorney to aid in the prosecution of the case. The county attorney, Lafferty, and attorney C. M. Brown, were present during the trial, and assisted in the prosecution. It also appears that J. B. Bolton was employed by Byron Clark, a brother of the deceased, to aid in the prosecution. At the close of the evidence, the defendant objected to Mr. Bolton's making an argument in the case, especially the closing one, for the reasons that the other attorneys for the state named had assisted in the trial, that Bolton was acting for Byron Clark, and that the evidence showed that, in killing Walter Clark, the defendant acted in self-defense, against a joint attack made by Walter and Byron. The objection was disregarded, and Bolton was permitted to make the closing argument to the jury. In this there was no error. It was not shown that Bolton was employed to protect any interest which Byron Clark had in the prosecution separate from the state. Clark was not on trial. His statement is that he employedBolton to help try the cause, and we do not discover any reason for concluding that Bolton sought to promote any special interest that his employer may have had. In the case of State v. Shreves, 81 Iowa, 623, 47 N. W. 899, it was held admissible, under the existing statutes, for a prosecuting witness or a party complaining to employ counsel, with the approval of the court and county attorney, to assist in the trial of a criminal case. We do not think the fact that in this case the court had appointed an attorney to assist in the prosecution had any material bearing on the right of Byron Clark to employ Mr. Bolton, so long as his employment was approved by the county attorney and the court; and the record justifies the conclusion there there was such approval.

3. In the closing argument of the state to the jury, Mr. Bolton used the following words: “I tell you, gentlemen, money talks. Oliver Helm, Amanda Helm, and Ed. Short were witnesses before the grand jury and at the coroner's inquest. They were then witnesses for the state. Now they are witnesses for the defendant. We have been prepared for this thing. We knew that some one had been to Ottumwa and Bonaparte, and were prepared for the evidence from there.” The defendant objected to these remarks, and asked the court to have them reduced to writing. The court sent a bailiff for the reporter, who was not in the court room; but, before the reporter appeared, the court said, in the presence and hearing of the jury: “We will not wait for the reporter. The court has a distinct recollection of the language used by counsel. The court considered the argument legitimate, but, if you (addressing an attorney for the defendant) want the remarks made a matter of record, the same may be done.” The record shows a reason for the statement and ruling of the court in words as follows: “The judge's reason for so remarking that he so regarded the remarks made by said Bolton to the jury was that the said remarks were in reply to remarks of defendant's attorney that the state had not called as witnesses Oliver Helm, Amanda Helm, and Ed. Short, witnesses at the coroner's inquest and before the grand jury.” What the statements thus made on behalf of the defendant were is not otherwise shown by the record. The defendant insists that he was prejudiced by the statements of Bolton, especially by the first sentence, and that its prejudicial effect was greatly increased by what was said by the court in apparent approval. The inference which would naturally be drawn from the words, “I tell you, gentlemen, money talks,” taken in connection with the remainder of the statement, is that the witnesses had been influenced in giving their testimony by the corrupt use of money. Their testimony, as given on the trial, was favorable to the defendant; and any unauthorized statement which would make them appear to the jury to be less credible than they were in fact would have been prejudicial to him. That the words in question were calculated to cast odium upon the witnesses to which they referred, and cause their testimony to have less weight with the jury than it would have had if the words had not been spoken, is, we think, evident, and, unless justified by something shown or said on the trial, they are sufficient reason for reversing the judgment of the district court. See Henry v. Railway Co., 70 Iowa, 233, 30 N. W. 630;Whitsett v. Railway Co., 67 Iowa, 159, 25 N. W. 104. We find nothing in the record to justify their use. The names of the witnesses designated are indorsed on the indictment, but what testimony the witnesses gave before the grand jury or at the inquest is not shown. Nothing set out in the record justifies the charge of bribery. It is shown that the defendant's attorney referred to the fact that the state had not called the witnesses named, but the reason given by the...