State v. Hudson

• Decision Date: 03 October 1899
• Citation: 80 N.W. 232,110 Iowa 663
• Parties: STATE OF IOWA v. JOHN HUDSON, Appellant
• Court: Iowa Supreme Court

80 N.W. 232

110 Iowa 663

STATE OF IOWA v. JOHN HUDSON, Appellant

Supreme Court of Iowa, Des Moines

October 3, 1899

Appeal from Clinton District Court.--HON. P. B. WOLFE, Judge.

THE defendant was indicted for murder in the first degree, in killing one Patrick Murphy by shooting him on October 24 1898. He pleaded not guilty, and, upon trial had, was found guilty of manslaughter, and judgment of imprisonment in the penitentiary for the term of eight years rendered against him, from which judgment he appeals.

Affirmed.

Walter I. Hayes for appellant.

Milton Remley, Attorney General. C. H. George, County Attorney, and W. H. Redman for the State.

OPINION

GIVEN, J.

I.

One Ben Van Epps, being called as a juror, on examination as to his qualifications, said, in substance, as follows: That he knew the case only as he read and heard of it; heard men from the place where the transaction took place talking as if they were talking facts, and from this, and what he read, he had formed an opinion--a fixed opinion--as to the guilt or innocence of the defendant, that it would take evidence to remove. He further said, "I do not know whether the reports are true," and made answers as follows: "Q. But you think, notwithstanding anything you may have heard or read, you could try the case upon the testimony introduced before the jury, and render a verdict upon that? A. Yes, sir. Q. Now, in hearing the evidence or in determining this matter, would this opinion you have formed, and which you have stated, affect your arriving at a verdict, or affect you in your consideration of the evidence, at all? A. Well, I don't know as it would. Q. You don't know whether it would or not? A. No, sir." Appellant's challenge for cause was overruled, and of this he complains. As frequently occurs on such examinations, the answers were not entirely consistent. The matter to be determined was whether the juror had such an opinion as would prevent him from rendering a true verdict upon the evidence. It does not follow that every one who says he has formed an opinion from what he has heard and read is disqualified. The appearance and intelligence, or want of intelligence, of a juror, as he appears before the court, may go far to convince the mind that he can or cannot rise above the opinion formed, and render a verdict upon the evidence alone. With the superior opportunities of trial courts in determining this fact, the presumption is in favor of the ruling; but in passing upon such challenge they should exercise great care to see that disqualified jurors are not permitted to sit, and to resolve all reasonable doubts in favor of the challenge. It is the duty of the court, not of the juror, to determine whether his opinion disqualifies him to act as a juror. State v Munchrath, 78 Iowa 268, 43 N.W. 211; State v. Brady, 100 Iowa 191, 69 N.W. 290; State v. Foster, 91 Iowa 164, 59 N.W. 8; State v. Young, 104 Iowa 730, 74 N.W. 693; State v. Weems, 96 Iowa 426, 65 N.W. 387; State v. Yetzer, 97 Iowa 423, 66 N.W. 737. While we are not disposed to extend the rules announced in these cases, we adhere thereto, and reach the conclusion that, under them and the facts in this case, appellant's challenge was properly overruled.

II. Dr. Cook, who attended the deceased, was called by the state, and was asked on cross-examination: "Q. Did Mr. Murphy make any statement to you as to the shooting?" There being no objection, the witness answered: "A. Not as to who did it. He said he didn't know. He said he was under the influence of liquor. He said they were all drunk." On redirect examination he was asked: "Q. Did he made any statement in regard to whether he had a revolver himself?" Appellant objected, "as not proper redirect examination," which objection was overruled, and the witness answered: "A. He did." The witness was then asked: "What did he say?" to which appellant objected "as irrelevant, immaterial, hearsay, and not proper redirect examination, and as not referring to anything asked on cross-examination." The objection was overruled, and the witness answered: "A. He claimed he did not have one." Of these rulings appellant complains. The importance of this testimony will hereafter appear. There is but one theory upon which the state was entitled to ask these questions on re-direct-examination, and that is that they called for parts of the same conversation, and in relation to the same subject, that had been called out on the cross-examination. Appellant had asked for Murphy's statements as to the shooting, and immediately following, the state asked what he said as to having a revolver. This was calling for a part of the same conversation pertaining to the same subject, and was competent, under the provisions of section 4615 of the Code. We think it fairly appears that the questions asked by the state, and the answers given, related to the same conversation to which Dr. Cook testified on cross-examination. Louis Koch, who saw the transaction when about one hundred yards distant, and who went immediately to the place of the shooting, was asked: "Q. State whether the man Murphy--the man who was shot--had a revolver or an instrument for shooting?" Appellant's objection was overruled, and the witness answered: "I didn't see him have any revolver; not that I seen." It is argued that this was error, because others reached the place before the witness, and because he was not asked as to his means of knowledge, nor what he did to find out the fact. He had stated fully what he saw and heard when one hundred yards away, while on the way, and after he reached the place, thereby disclosing fully his means of knowledge. The fact that others were there a moment before him only goes to the weight of his testimony. Witness Morgan, who assisted in arresting the defendant on the day of the shooting, was permitted, over defendant's objections, to testify that defendant said he had not been in Wheatland (the place where the shooting occurred) that day, nor for three months. It is insisted that this was immaterial, and related to a matter about which there was no dispute. True, there was no room for dispute but that appellant was in Wheatland, and at the place of the shooting, at the time it occurred; but it was competent and material to show that he denied that fact, especially just after attempting to escape to avoid arrest. We discover no errors in the rulings of the court in taking evidence.

III. After the prosecution rested, the defendant moved the court for a verdict on the following grounds: "First, that the state had not shown sufficient facts to warrant a conviction second, that the state had not rebutted the presumption of self-defense; or that the defendant did not act in self-defense, and, third, because it appears that a quarrel was taking place,--that words were being used,--and it further appears that there were a number of witnesses within a proper distance to hear and know what was taking place, who have not been called by the state, which witnesses were called and sworn before the grand jury in this case, as appears by the record." This motion was overruled, and of this the appellant complains. The state had called but three witnesses who testified to what took place at the time of the shooting, as observed by them at some distance from the place of the shooting. Their testimony showed that the affair took place on the top of a railroad embankment, and that a number of men were close by, at the foot of the embankment, at the time. The record shows that several of these men were examined before the grand jury, but were not called on the trial. Whether the court erred in overruling this motion on the first and second grounds must be determined upon the state of the testimony before the court and jury at that time. There can be no doubt that appellant shot Murphy, and inflicted a would of which he afterwards died. The real contention is that the state "had not rebutted the presumption of self-defense." Jack Izer, who resided at Marion, and was four hundred and twenty-five to four hundred and fifty feet distant, talking to two men, testified as follows: "One of the men said, 'I guess there is going to be a fight.' I said 'No, they won't fight;' and the man that got shot came up on the track. At this time Hudson was standing down the bank below the other man, and the man that got shot came up with his coat off, swinging it around, and said to Hudson, 'If you want to fight, come up on the track.' Hudson came up, and at that time I just turned my head to speak to these men standing there, when I heard the report of a revolver, and, whirling round,...