State v. Jiles

• Decision Date: 03 May 1966
• Docket Number: No. 51763,51763
• Citation: 258 Iowa 1324,142 N.W.2d 451
• Parties: STATE of Iowa, Appellee, v. Charles JILES, Appellant.
• Court: Iowa Supreme Court

Page 451

142 N.W.2d 451

258 Iowa 1324

STATE of Iowa, Appellee, v. Charles JILES, Appellant.

No. 51763.

Supreme Court of Iowa.

May 3, 1966.

Joe Nutting and W. David Tyler, Waterloo, for appellant.

Lawrence F. Scalise, Atty. Gen., Don R. Bennett, Asst. Atty. Gen., and D. Quinn Martin, County Atty., Waterloo, for appellee.

RAWLINGS, Justice.

Defendant-appellant, Charles Jiles, was indicted for murder in the first degree for the killing of his uncle Booker Hinton.

Trial resulted in a verdict of murder in the second degree and appeal followed.

The fatal shot was fired in a home occupied by defendant and his mother. Present at time of the shooting was defendant's blind mother Minnie Hess, and Louise Hood, a former wife of decedent Hinton.

Defendant arrived home about 9:00 p.m., October 18, 1964, drank some wine, talked to his mother and Mrs. Hood, and shortly after midnight had a long distance telephone conversation with his girl friend then visiting in Michigan. The mother interrupted on an extension phone voicing some complaint about cost of the call.

As a result of this intrusion defendant and his mother engaged in a heated argument.

The mother started singing and praying, then finally called Hinton, her brother, requesting he come and take her to the home of a cousin to stay for the night.

When Hinton arrived Mrs. Hess was waiting outside the home, having been taken there by Mrs. Hood. Defendant was standing in the doorway. Hinton got out of his car, walked up on the porch and started arguing with defendant. During the course of this argument Hinton pulled a .45 caliber revolver from his clothing and struck defendant with it. The pistol was then knocked from Hinton's hand and it fell to the kitchen floor. There was a scramble for the weapon but defendant reached it first and the two men then began scuffling. There was a shot fired from the pistol which went into the kitchen floor. The scuffling continued and the men finally moved from the kitchen into the living room.

Defendant then swung Hinton against the wall and said, 'this is it', and fired. That statement is denied by defendant.

In any event the bullet struck Hinton in the abdomen. He then went to his car, drove a block away, and was from there taken to a hospital by another relative. He died on the operating table.

Defendant contends his conviction cannot stand because of error by the trial court in the following: (1) permitting presentation of nonsimilated opinion evidence by an expert witness; (2) the giving of certain instructions relative to malice; and (3) failing to instruct as to the meaning of presumption or inference, and on the right of defendant to arm himself. We find no reversible error in any of these particulars.

I. Warren G. Johnson, special agent with the Federal Bureau of Investigation, was called to testify for the State.

Defendant does not challenge the competency or qualifications of this witness. He claims opinion evidence by an expert witness must be foundationed upon experiments made with conditions shown to be the same as those existing at time of the controverted event.

The witness Johnson's testimony was confined to laboratory inspections, tests and experiments involving Hinton's trousers, shirt and jacket, the revolver in question and four shells, three of which had been fired, and his knowledge as a ballistics expert.

Defendant appears to direct his most vigorous challenge to admissibility of opinion testimony by this witness as it relates to distance from pistol to person when the fatal shot was fired.

In that connection some of the illustrative questions and answers are as follows:

'Q. I would next like to have you examine State's Exhibit--that is the blue shirt there. A. State's Exhibit 'N'.

'Q. Yes. Would you first identify whether you examined State's Exhibit 'N'? A. I did.

'Q. What tests did you do on State's Exhibit 'N' and what were the results? A. I examined the shirt microscopically for the gun powder and gun powder residues.

'Q. Then what? A. I then processed this shirt chemically for the purpose of finding gun powder. The microscopic examination filed (sic) to show a gun powder or gun powder residues. The chemical examination disclosed a small amount of powder residue immediately surrounding the hole in the shirt.

'Q. In the course of firing a weapon or specifically the course of firing State's Exhibit 'Q', which is the pistol in this case, can you state whether or not a bullet fired from State's Exhibit 'O' will carry with it any part of the powder on the bullet itself? A. Yes, sir it will.

'Q. Powder residues deposited around the bullet hole on State's Exhibit 'N' other than immediately around the hole would have to come from where? A. The powder residue other than that immediately around the hole would have to come from the barrel of the weapon.

'Q. Would you indicate whether your examination of State's Exhibit 'N', the shirt, indicated such powder residues? A. I found no powder residues surrounding this hole other than the immediate area of the hole itself.

'Q. During your examination of State's Exhibit 'N', which is the shirt, do you have an opinion as to how far from the shirt, State's Exhibit 'O' would have had to have been held at the time of firing the shot which produced the hole in State's Exhibit 'N'? A. Yes, sir.

'Q. Would you state what that opinion is? A. The absence of a significant pattern of gun powder residues surrounding a bullet hole precludes the stating of an actual distance at which the weapon was held from the garment.

'Q. Would you have an opinion as to what the minimum distance from the garment, State's Exhibit 'N', the shirt--what minimum distance there would be between the shirt and the gun, State's Exhibit 'O', this distance would normally be? A. Yes.

'Q. Would you state what that opinion is? A. This distance would normally be three to four feet.

'Q. Would this have been minimum or the maximum distance that the gun would be from the shirt? A. This would have been the maximum distance, the muzzle to garment, three to four feet.

'Q. Maximum distance? A. The gun powder particles would appear on the garment; beyond three to four feet they would not appear.'

Based upon the scientific experiments disclosed by this testimony, the witness Johnson concluded the weapon had been held a distance of at least three or four feet from Booker Hinton when the fatal shot was fired.

Then, as the result of other scientifically proper tests, he was also of the opinion the shot fired into the body of Hinton came from the subject revolver. His testimony in that area was as follows:

'Q. Would you examine State's Exhibit 'T' and indicate whether or not you have seen it before? A. Yes, sir I have.

'Q. Would you indicate what it is? A. This is a .45 caliber bullet manufactured by Remington or Peters.

'Q. And what tests or test, what examination did you make of this bullet? A. I examined the bullet to determine whether or not it was capable of being fired in a weapon like State's Exhibit 'O', whether there were sufficient marks on this bullet to identify a specific weapon from which it was fired

'Q. And what were the results of your tests? A. I test fired State's Exhibit 'O', I recovered the bullet and miscroscopically compared the bullet with State's Exhibit 'T'. This was done with a comparison microscope which is two lenses instead of a single one so that you look down and see on one side the evidence bullet and on the other side the test bullet that you fired in the laboratory, then by moving the two bullets around simultaneously you get an actual side-by-side comparison of the marks.

'Q. What did this reveal as to State's Exhibit 'T' as the bullets showed? A. In my opinion this bullet was fired by State's Exhibit 'O' to the exclusion of all other weapons.'

In the landmark case of Grismore v. Consolidated Products Co., 232 Iowa 328, 342, 5 N.W.2d 646, we said: 'The courts and other authorities uniformly agree that the receipt of opinion evidence, whether lay or expert, and the extent to which it will be received in any particular case, are matters resting largely in the administrative discretion of the court. 32 C.J.S., Evidence, § 449, p. (86), 1 Wigmore, Evidence, section 682 (2d Ed.), p. 1092. Courts should be, and are, very loathe to interfere with such discretion unless it has been manifestly abused to the prejudice of the complaining party. We have permitted opinion testimony in many cases on matters with which jurors might have some familiarity but where the witness, because of his greater knowledge, experience and familiarity with the subject, might be of help to them.'

In the same case we said at pages 343--344 of the Iowa Reports, 5 N.W.2d 655, supra: 'There are many matters of scientific investigation and specialized knowledge in the fields of the professions, trades, business, industry, art, and other endeavors where the minds of those not learned therein necessarily grope but blindly. Expert opinion in such cases is indispensable to aid the jurors in reaching a correct conclusion, and the fact that the matter inquired about is a vital and controlling fact in the trial, or is even the ultimate fact, which the jury are to pass upon and determine, is no reason why the opinion should not be received.'

As is indicated in State v. Miller, 254 Iowa 545, 117 N.W.2d 447, Iowa may have encountered some difficulty in arriving at the rule announced in Grismore v. Consolidated Products Co., supra, but now stands committed to the doctrine that expert testimony is admissible as to the cause which produced, probably produced or might have produced a certain physical condition or result, provided, however, no witness should be permitted to give his opinion directly that a person is guilty or innocent, or is criminally responsible or irresponsible, as these are mixed questions of law and fact and not subjects of opinion testimony.

In the case now before us an...