State v. Johnson

• Decision Date: 13 December 1932
• Docket Number: No. 41001.,41001.
• Citation: 215 Iowa 483,245 N.W. 728
• Parties: STATE v. JOHNSON.
• Court: Iowa Supreme Court

215 Iowa 483

245 N.W. 728

STATE

v.JOHNSON.

No. 41001.

Supreme Court of Iowa.

Dec. 13, 1932.

Appeal from District Court, Pottawattamie County; O. D. Wheeler, Judge.

The appellant appeals from the judgment rendered upon a verdict of guilty of the crime of manslaughter.

Affirmed.Tinley & Tinley and Robertson & Robertson, all of Council Bluffs, for appellant.

John Fletcher, Atty. Gen., and Neill Garrett, Asst. Atty. Gen., for the State.

WAGNER, J.

The indictment in this case charges the defendant with the crime of murder of his wife, Millie Johnson, on or about December 23, 1927. The charge therein is murder in the first degree. The case has been twice tried in the district court. As the result of the first trial, the defendant was acquitted of the crime of murder in the first degree and found guilty of murder in the second degree. On appeal to this court, the judgment of the trial court was reversed. See State v. Johnson, 211 Iowa, 874, 234 N. W. 263. Upon the issuance of procedendo from this court, the defendant was placed on trial in the district court for the crime of murder in the second degree. As the result of the trial, the defendant was found guilty of the included offense of manslaughter and, from the judgment rendered, the defendant has appealed.

For brevity, we will not repeat the facts, except as it may become necessary, but refer the reader to the opinion rendered on the former appeal. The trial in the instant case was begun on April 6, 1931.

[1][2][3][4][5] One Lester Bertelsen, a son of the decedent and a stepson of the defendant, was a witness for the state and gave material testimony against the defendant. It appears that said witness, shortly prior to the trial of the instant case, had been convicted of a felony in the Pottawattamie county district court and was, at the time of the trial, in the county jail, waiting to be taken to the penitentiary. Said witness did not testify as to his vocation on direct examination. On cross-examination, he testified that he is a laborer and was at that time living in the county jail and had lived in the jail since March 4th; that he had been convicted of a felony in the district court of Pottawattamie county; that he was just staying in the county jail temporarily; that he had not been doing anything for a week or so before December 23, 1927, the time of the commission of the offense; that he had not had any business for the last two or three months. During the continuance of the cross-examination of said witness, the following occurred:

“Q. Isn't it a fact instead of you being a common laborer that you were a bootlegger at that time? A. No, sir.

Q. Isn't it a fact you have been a bootlegger since that time and been in the business of breaking into cars, and committing larcenies, and things of that kind, since that time?”

Appropriate objection by the state to this interrogatory was sustained. The defendant then made the following offer: “The defendant offers to show by cross examination of this witness, who has testified that his business was that of a common laborer--that since the 23rd of December, 1927, he has been engaged as a common laborer, as he has testified, but that has not been his occupation but that he has been engaged in committing larcenies and burglaries and bootlegging and that has been his general occupation and business instead of being a common laborer.” To the offer, the state made appropriate objection, which was by the court sustained. The defendant assigns the aforesaid rulings of the court as error. It will be noted that the witness answered that he had been convicted of a felony. See section 11270, Code 1931. The witness also gave his place of residence as the county jail, and his occupation as that of a laborer, and testified that he was not a bootlegger “at that time” (the time of the commission of the offense). The question, which the court did not permit the witness to answer, and the offer made, do not refer to the ordinary meaning of the terms “occupation,” “vocation,” or “business,” but do refer to specific crimes inquired about by the defendant's attorney. The crimes mentioned in the interrogatory and offer can be committed by one, regardless of what may be his occupation, business, vocation, or calling. It will be noted that there is no showing that the crimes concerning which inquiry was made were felonies and the witness was not asked as to whether he had been convicted of any specific crimes which constitute felonies. We have properly held that a witness may be asked on cross-examination as to whether or not he had been convicted of a specific crime which is a felony, such as rape. See State v. Friend, 210 Iowa, 980, 230 N. W. 425. While a witness may be properly required to answer whether he has been convicted of a felony or of a crime which constitutes a felony, he cannot properly be required to answer whether he has committed certain specific crimes not connected with the one for which the defendant is on trial, be they felonies or misdemeanors.

The appellant relies at this point upon State v. Row, 81 Iowa, 138, 46 N. W. 872;State v. Pugsley, 75 Iowa, 742, 38 N. W. 498;King v. Chicago, Milwaukee & St. Paul Railway Co., 138 Iowa, 625, 116 N. W. 719;State v. Poston, 199 Iowa, 1073, 203 N. W. 257. A careful examination of said cases will show that they do not support the contention now urged by the appellant. In the Row Case, we held that it was proper cross-examination to require the witness to state that his business was whitewashing, kalsomining, and frescoing, and that his residence was in the county jail. Likewise, in the instant case, the court permitted the witness to answer, on cross-examination, that he is a laborer and that his place of residence is in the county jail. In State v. Pugsley, 75 Iowa, 742, 38 N. W. 498. We held that it was proper to require the witness on cross-examination to state that he was living in the county jail and the length of time that he had been there, and that he was waiting for the court to come. The inquiries referred to in the other two cases relied upon by the appellant are not analogous to the interrogatory propounded to the witness and offer made in the instant case. We have often held that the permissible range of cross-examination of witnesses for the purpose of affecting their credibility in general rests in the sound discretion of the trial court. See State v. Kendall, 200 Iowa, 483, 203 N. W. 806;State v. Madden, 170 Iowa, 230, 148 N. W. 995;State v. Osborne, 96 Iowa, 281, 65 N. W. 159;State v. Burris, 198 Iowa, 1156, 198 N. W. 82;State v. Brandenberger, 151 Iowa, 197, 130 N. W. 1065;State v. Chingren, 105 Iowa, 169, 74 N. W. 946;State v. Watson, 102 Iowa, 651, 72 N. W. 283;State v. Poston, 199 Iowa, 1073, 203 N. W. 257. The correct rule is aptly stated in 40 Cyc. 2570, in the following language: “The extent to which a party or witness may be cross-examined for the purpose of affecting his credibility rests in the sound discretion of the trial court, which action will not be revised on appeal unless an abuse of such discretion is made to appear.”

We need not, and do not, determine whether the question propounded or the offer made was such that the witness would not be compelled to answer, for the reason that, under the provisions of section 11267, Code 1931, the matter elicited in the question would tend to render the witness criminally liable or to expose him to public ignominy. The privilege to refuse to answer, under said section, is one personal to the witness, and the record does not show that the witness claimed the privilege. Since the court required the witness, in the instant case, to answer that he had been convicted of a felony, and since the witness did answer the question as to what is his business or occupation, and since the court required the witness to state that he was residing in the county jail, all for the purpose of affecting his credibility as a witness, it is sufficient to say that the ruling of the court was right, and that there was no abuse of discretion on the part of the trial court in refusing the appellant to go to the limit sought in the asking of the aforesaid interrogatory, and in the making of the aforesaid offer. There is no error at this point.

[6][7] The evidence shows that, after the defendant shot his wife, he also shot himself. A doctor, who was called as a witness for the state, testified that the wound was on the left side of defendant's body. His attention was called to his testimony at the previous trial, wherein he stated that the bullet in defendant's body entered just about the nipple on the right side. The witness conceded that his testimony at the prior trial, which was given shortly after the crime was committed, was correct and that he could verify the location of the wound by an examination of the defendant, which was done, and after which he frankly admitted that the wound in defendant's body was upon the right instead of the left side. The defendant's attorney then said: “That shows how treacherous memory is,” and then asked the witness: “Aren't you liable to be mistaken on some of these other matters you have testified to?” The court sustained an objection to the interrogatory, and this ruling of the court is now urged as error. Immediately after the sustaining of the state's objection to the aforesaid interrogatory, the witness testified: “When I testified a little while ago that this wound on defendant was on his left side I was simply mistaken about it.” By the asking of this interrogatory, the attention of the witness was not called to any specific portion of his testimony which differed from his testimony on the prior trial. We find no error at this point. It is a matter of common knowledge that the memory is not infallible, which fact was admitted by the witness.

[8] The testimony shows that the defendant had been drinking intoxicating liquor on the same afternoon and evening, and prior to...