State v. Johnson
| Decision Date | 20 January 1931 |
| Docket Number | 39365 |
| Citation | 234 N.W. 263,211 Iowa 874 |
| Parties | STATE OF IOWA, Appellee, v. WALTER JOHNSON, Appellant |
| Court | Iowa Supreme Court |
Appeal from Pottawattamie District Court.--J. S. DEWELL, Judge.
The defendant was tried and convicted of murder in the second degree, and appeals.
Reversed.
Tinley & Tinley and Robertson & Robertson, for appellant.
John Fletcher, Attorney-general, Neill Garrett, Assistant Attorney-general, and Frank E. Northrop, County Attorney, for appellee.
I.
The indictment charges the defendant with the crime of murder in the first degree. The evidence shows that, sometime after 9:30 o'clock on the evening of December 23, 1927, the defendant shot and killed his wife, and immediately thereafter shot himself, inflicting a serious wound in his right chest.
At the close of the evidence, the defendant moved the court to withdraw the charge of murder in the first degree, upon the ground that the evidence was insufficient to convict the defendant thereof. The motion was overruled, and of this ruling the defendant now complains. The evidence fully justified the submission of this charge to the jury. We shall not review it in detail, as the defendant was acquitted of this charge. One of the claims asserted by the defendant was that he was in such a state of intoxication that he was unable to form an intent, and therefore could not have been guilty of murder in the first degree. This issue was submitted to the jury. So far as the evidence shows, there was no immediate provocation prompting the act. Both the defendant and the deceased were addicted more or less to the use of intoxicating liquor. The defendant admitted that he occasionally drank to excess. The evidence also shows that several bottles of home brew were consumed by the defendant and the deceased on the night in question, together with some whisky. There is evidence tending to show that the relations of the defendant and deceased were somewhat strained, and that he might have been jealous of attentions which he appeared to think were shown to her by other men.
As stated, the deed was accomplished by the use of a deadly weapon, and in this connection we may as well dispose of the further contention of the defendant that the court committed error in failing to give the jury an instruction on the law of self-defense. No such instruction was requested, and no evidence tending to show that the act was done in self-defense appears in the record. The court properly overruled the motion to withdraw the charge of murder in the first degree from the jury, and there was no evidence that defendant acted in self-defense.
II. The shooting occurred at the home of the defendant. The deceased was found lying dead on the front porch, and the defendant in the yard, some distance away, where he had fallen after inflicting the wound upon himself. As stated there was evidence that both the defendant and the deceased had been drinking, and also that the defendant was, to some extent, under the influence of liquor.
Dr. Brown, a witness for the State, arrived on the scene a very few minutes after the crime was committed. The defendant was immediately thereafter removed to a hospital. Dr. Brown testified that he smelled the odor of liquor on the defendant's breath; that he was apparently, to some extent, intoxicated, but that it was hard to determine the relative effect of the liquor and of the shock resulting from the self-inflicted wound. On cross-examination, the witness gave it as his opinion that the defendant was drunk; that he was more or less rambling in his conversation. The witness was then asked by counsel for the defendant, on cross-examination, as to whether or not, from what he saw, the defendant was in a mental condition at the time to determine what he was doing or saying 20 minutes before the accident took place. An objection to this question was sustained. Counsel then inquired of the witness "whether, at the time he first saw the defendant in the hospital, what he would say as to whether or not he was in a mental condition 20 minutes before that time to have contemplated the act he was charged with committing." Objection was also sustained to this question.
A third question, substantially, in form and substance, like the preceding questions, was propounded to the witness, and again the court sustained the objections of the State thereto. It is apparent that some of the questions called for the ultimate conclusion of the witness on the facts, and sought to invade the province of the jury. This was improper, and, in so far as the questions were so framed as to call for the conclusion of the witness, the objections were properly sustained. State v. Steffen, 210 Iowa 196, 230 N.W. 536. The form of each of the questions was objectionable. The foundation assumed therefor was not justified by the evidence. The observation by the witness of the defendant was 20 or 30 minutes after the shooting, and after sufficient time had elapsed so that he must have realized the serious character of his act. He was suffering both from shock and the effects of liquor. We think the objections to the questions as put to the witness were properly sustained.
III. Numerous instructions were requested by the defendant, and many exceptions were taken to the instructions given by the court on its own motion. None of the requested instructions were given as presented by the defendant. Before discussing the instructions generally, we shall dispose of the exceptions lodged against Paragraph 37. The court in this instruction told the jury that:
"So far as the defendant relies on good character or upon a peaceable disposition to disprove the charges made by the State herein, the burden is upon the defendant to establish such good character or peaceable disposition."
The burden of establishing the defendant's guilt beyond all reasonable doubt is always upon the State. As to certain matters, however, such as drunkenness, alibi, and insanity, which we have held are defensive in character, the burden is upon the defendant to establish the same by a preponderance of the testimony. State v. Harrison, 167 Iowa 334, 149 N.W. 452; State v. Patton, 206 Iowa 1347, 221 N.W. 952; State v. Buck, 205 Iowa 1028, 219 N.W. 17.
An instruction was requested by the defendant as to the effect to be given by the jury to the evidence introduced by the appellant to prove his general reputation as to a quiet, peaceable disposition, and as to good character. The court declined to give the requested instruction, but gave two instructions designed to fully cover the subject. In these instructions the court, however, failed to refer in each instance to both reputation as to disposition and also as to character. Perhaps the omission did not necessarily mislead the jury, but it would have been better if the instructions had in each instance referred to both. The court instructed the jury that, if the evidence of good character,--omitting any reference to the evidence as to a peaceable disposition,--was sufficient to generate a reasonable doubt of the defendant's guilt, it was their duty to acquit. In so far as the requested instruction and the instructions given by the court told the jury that evidence of good reputation as to peaceable disposition and good character may be sufficient to generate a doubt and permit an acquittal, they were correct. State v. Reynard, 205 Iowa 220, 217 N.W. 812; State v. Schumacher, 195 Iowa 276, 191 N.W. 870; State v. King, 122 Iowa 1, 96 N.W. 712; State v. Abarr, 39 Iowa 185. Evidence of general reputation of a quiet, peaceable disposition and of good character is not defensive in character, like self-defense and alibi. The court so instructed the jury in this case.
It has never been the rule in this state, and, so far as we are advised, is the rule in no other jurisdiction, that, when testimony is introduced by the defendant for the purpose of showing that he possesses a good reputation as a quiet, peaceable person, and one of good character, the burden of proof is upon him to establish such reputation. Clearly, no burden rested upon the defendant at this point. Neither a good reputation as to the particular trait involved nor of good character constitutes a defense to a criminal charge. Evidence of this character is admissible upon the theory that a person thus possessed is less likely to commit crime. Good character is in such cases an asset of very great value, and goes directly to the issue of the defendant's guilt or innocence. Such evidence may be sufficient to generate a doubt in the minds of the jury and entitle the defendant to an acquittal. The court in its instructions so advised the jury. This portion of Paragraph 16, which is quoted above, is clearly erroneous, and should not have been given. The court cannot say that it was without prejudice.
IV. The defendant requested the court to instruct the jury as to the legal effect to be given the testimony of certain declarations and admissions by the defendant. The requested instruction was, in substance, the cautionary one frequently given as to the weight and consideration the jury shall give to statements, declarations, or admissions of a party. The court refused to give the requested instruction, and none was given covering the subject. We deem it unnecessary to incorporate the statements of the witness in the opinion; but, after careful consideration of the record, a majority of the court is of the opinion that the requested instruction should have been given, and that the refusal of the court to give same should not be held to have been without prejudice.
V. Numerous exceptions taken to the court's instructions are based upon the...
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