State v. Johnson

• Decision Date: 05 October 1887
• Citation: 72 Iowa 393,34 N.W. 177
• Parties: STATE v. JOHNSON.
• Court: Iowa Supreme Court

72 Iowa 393

34 N.W. 177

STATE

v.JOHNSON.

Supreme Court of Iowa.

October 5, 1887.

Appeal from district court, Pottawattamie county.

The defendant was indicted and convicted of murder in the first degree, and sentenced to imprisonment in the penitentiary for life. He now appeals to this court.D. B. Dailey and Walter J. Smith, for appellant.

A. J. Baker, Atty. Gen., for the State.

BECK, J.

1. In the morning of the third day of October, 1884, William McGonigle was found in an outhouse attached to a tavern in Council Bluffs in a nearly insensible condition. He was almost nude. His clothing, or parts of it, were found in the outhouse, but no money or property of any considerable value was found upon his person or his clothing. There were marks of a violent blow upon his head, which was of such character as to account for his insensible condition. The marks of another blow were discovered upon his shoulder. He lived in Woodbine, where he kept a hotel, and went to Council Bluffs the day before he was found in the outhouse. The purpose of his visit was to buy goods, and he had upon his person, to be used for that purpose, $250 or $300, no part of which was found with him. He was taken to his family at Woodbine, where he died in four or five days from the injury caused by the blow upon his head. After he reached home he recovered to some extent, and was able to inform his wife that he was injured by two men, giving their names. There is no doubt that his death was caused by the blow upon the head, and the conclusion is authorized that it was given in the perpetration of a robbery. The evidence tending to connect defendant with the crime mainly, if not wholly, consists in statements made by the deceased to his wife shortly before his death, and the admission made by the defendant to a woman some days after the commission of the crime. We will notice the objections made to the judgment upon the verdict in the order of their discussion by counsel.

2. The wife of the deceased was permitted to testify, against defendant's objection, to declarations made by deceased, shortly prior to his death, which tend to connect defendant with the commission of the crime. It is insisted that it was not shown that these declarations were made by deceased in the belief of his certain and speedy dissolution. The abstract upon which the case is submitted to us shows that the wife testified that her husband “knew he was going to die” at the time he made the declarations. It is insisted that the evidence is insufficient to warrant the admission of the declarations, for the reason that the abstract fails to disclose how the wife knew that her husband believed he was about speedily to die. She testifies that she was with him, and spoke with him on the subject of his injuries and condition. She had an opportunity to know the condition of his mind, and, as she makes a positive statement in regard to it, we will presume, in the absence of showing to the contrary, that she had knowledge upon which her positive statements were based. After making these statements it was the defendant's duty, did he doubt her possession of such knowledge, to cross–examine her in relation thereto, and, if she disclosed her want of knowledge, to present her testimony upon that point in his abstract. This he failed to do. We cannot, therefore, hold that the evidence was not rightly admitted. The fact disclosed in the abstract as to the motive of the injury and the condition of the deceased, considered in connection with his declarations, warrants the conclusion that deceased believed at the time that he would soon die.

3. The defendant testified in his own behalf. He stated that when the homicide was committed he was in a feeble condition, caused by a wound he had received from a pistol–shot some time before. He was asked to state if the bullet was still in his body, and to show to the jury his wound; but the court refused to permit him to respond to the questions, of which he now complains. The proposed evidence was immaterial. He had testified to his feeble condition. The display of his wound, and the fact that the bullet had not been removed, were not needed to support his testimony on this point, in view of the fact that his statements were not questioned.

4. The judge of the superior court of Council Bluffs testified, for defendant, to the effect that he was, about the time of the homicide, brought before the superior court upon a charge for an assault with an intent to do a great bodily injury. The witness was asked “to state what was the testimony as to the weapon.” He was not permitted to answer the question. It is not shown what fact was expected to be elicited by the answer. The question does not indicate the nature of the reply. We cannot presume that the evidence would be material, and therefore cannot hold that the district court erred in sustaining the objection to the question.

5. The defendant was recalled for cross–examination, against his objection. We need not determine whether there was error in this, for the reason that his cross–examination upon his recall developed no fact prejudicial in any degree to defendant. If the court erred in permitting the second cross–examination, it was without prejudice to defendant, and therefore not a ground of reversal. But the matter of permitting the second cross–examination rested in the sound discretion of the court, which is not shown to have been abused.

6. The defendant, in his cross–examination just referred to, testified to his whereabouts at or about the time, which tended to show that he was not at the place of the homicide. Witnesses were afterwards introduced whose testimony tended to contradict his statements in this regard. Counsel for defendant insist that this contradictory evidence was erroneously admitted. The evidence given by defendant tended to his own benefit. Surely no reason can be given why the state could not contradict it. There is no rule of the law which limits the right of the state to introduce, at a proper time and in a proper manner, evidence which shall disclose the very truth as to all circumstances tending to establish defendant's guilt. It may be further remarked that the evidence of the witness just referred to tended to contradict the statements of defendant made in his evidence given prior to the cross–examination above referred to. For this reason the evidence was rightly admitted.

7. The court below directed the jury in this language: “If it appears to you therefrom [the...