State v. Johnston, No. 42924.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtDONEGAN
Citation267 N.W. 698,221 Iowa 933
PartiesSTATE v. JOHNSTON.
Decision Date19 June 1936
Docket NumberNo. 42924.

221 Iowa 933
267 N.W. 698

STATE
v.
JOHNSTON.

No. 42924.

Supreme Court of Iowa.

June 19, 1936.


Appeal from District Court, Ringgold County; H. H. Carter, Judge.

A county attorney's information was filed against the defendant in the district court of Ringgold county, Iowa, charging her with the crime of murdering her husband, Herbert T. Johnston. To this information the defendant pleaded not guilty. Trial was had, and a verdict was rendered by the jury finding the defendant guilty of manslaughter. Thereafter, a motion for new trial, exceptions to instructions given, and exceptions to refusal to give instructions requested, were filed by the defendant, which were overruled by the court, and judgment was entered upon the verdict. From this judgment and the rulings of the court, the defendant appeals.

Affirmed.

[267 N.W. 699]

Rolla Shewmaker, and O. M. Slaymaker, both of Leon, and R. E. Killmar, and D. D. Slaymaker, both of Osceola, for appellant.

Edward L. O'Connor, Atty. Gen., Walter F. Maley, Asst. Atty. Gen., Emmet R. Warin, Co. Atty., and Charles J. Lewis, Special Prosecutor, both of Mount Ayr, for the State.


DONEGAN, Chief Justice.

Under an information charging her with the crime of murdering her husband, Herbert T. Johnston, the defendant was tried and convicted of the crime of manslaughter. Thereafter, within due time, she filed motion for new trial, exceptions to instructions given, and exceptions to refusal to give instructions requested, all of which were overruled by the trial court. Judgment was entered sentencing her to an indeterminate term in the Women's Reformatory at Rockwell City, and from this judgment and all adverse rulings of the court, the defendant appeals.

Appellant sets out 28 separately numbered errors relied upon for reversal. Many of these alleged errors will be grouped and considered together under separate divisions in this opinion.

The first error upon which the appellant relies for reversal is the refusal of the trial court to allow evidence to be introduced to impeach the testimony of the witness Dr. J. T. Stanton. The defendant was accused of having shot her husband with a revolver in her home at Mt. Ayr about 10:30 o'clock on the evening of June 7, 1934. Shortly after shooting her husband, the defendant also shot herself. Both defendant and her husband, while he was still living, were placed in an ambulance and started for a hospital at Creston. Dr. J. W. Hill and Dr. J. T. Stanton were riding with them in this ambulance. On the way to Creston the defendant's husband died. The witness, Dr. J. T. Stanton, who was sitting alongside of defendant, testified for the state as to statements made by the defendant while on the way from Mt. Ayr to Creston. On cross-examination, Dr. Stanton was asked whether he told the defendant about her husband's death while proceeding in the ambulance from Mt. Ayr to Creston, and he answered that “Dr. Hill did.” In answer to a question as to whether he had testified before the coroner's jury on the day following Herbert Johnston's death, he testified that he had. He was then asked: “Q. Did she know when he died?” And to this he answered that she did. He was then asked whether he did not testify before the coroner's jury as follows:

“Q. Was this question asked you: ‘Q. Did she know when he died?’ A. Yes, sir.

Q. And what answer did you make to it? A. That she did.

Q. Doctor, didn't you make this answer: ‘I think we told her. I don't know whether it registered or not.’ A. I don't remember ever saying the last part of that.”

[267 N.W. 700]

After some delay in securing the appearance of Dr. Hill and some examination as to the signing of the minutes of the evidence taken before the coroner's jury, the examination of Dr. Stanton proceeded as follows:

“Q. Now, Dr. Stanton, what do you say now as to whether or not this question was asked you before the coroner's inquest: ‘Q. Did she know when he died? A. I think we told her. I don't know whether it registered or not.’ A. I don't remember saying the last question-the last part of that question.

Q. Do you deny that you said it? A. No.

Q. If you did say it, you meant by that that you didn't know whether she understood about it or not? A. She might not have heard it.

Mr. Charles Lewis: We object to the question as leading.

The Court: Overruled. (State excepts.)

A. She was laying on the floor.

Mr. Slaymaker: Q. But if you said, ‘I don't know whether it registered or not,’ what did you mean by it? A. I meant she might not have heard the question.

Q. Did you mean that or did you mean that you didn't know whether she was in condition to realize it or not? A. I know she was in condition to realize it.”

Dr. Hill was called as a witness in behalf of the defendant, and, in connection with his examination as to testimony given by Dr. Stanton before the coroner's jury, he was asked the question: “Q. I will ask you also, Doctor, whether at that time and in that examination and as a part of that inquest, Dr. Stanton answered, ‘I think we told her. I don't know whether it registered or not.”

[1] This question was objected to on the ground that it called for testimony that was not the best evidence and that no grounds had been laid for impeachment. The objection was sustained, and the witness Dr. Hill was not allowed to answer. It is claimed that in thus ruling the court committed reversible error, for the reason that the testimony sought to be elicited by the question asked was proper evidence for impeachment, and that it should not have been refused on the ground that it was not the best evidence. We think the court erred in holding that the testimony was not admissible because it was not the best evidence. State v. Mushrush, 97 Iowa, 444, 66 N.W. 746;State v. Dean, 148 Iowa, 566, 126 N.W. 692;State v. Kimes, 152 Iowa, 240, 132 N.W. 180.

However, we find no prejudicial error in the court's ruling, because the testimony sought was not properly admissible as impeaching evidence. Dr. Stanton at no time denied that, in testifying at the coroner's inquest, he had said: “I think we told her. I don't know whether it registered or not.” What he said was: “I don't remember ever saying the last part of that.” “I don't remember saying the last question-the last part of that question.” On further being asked whether he denied having made the statement, he said: “No.” If the record showed no more than this, we think it would be insufficient for the introduction of impeaching testimony, because there was nothing contradictory or inconsistent between the testimony given by him upon the trial of the case. Counsel for appellant, however, pursued the cross-examination of this witness further, and asked him what he meant by the statement, “I don't know whether it registered or not.” To this question the witness answered: “I meant she might not have heard the question.” Counsel for appellant then proceeded to ask the question: “Q. Did you mean that or did you mean that you didn't know whether she was in condition to realize it or not?” And to this the witness answered: “I know she was in condition to realize it.” Even if the witness had made the statement before the coroner's jury concerning which he was examined, he not only did not deny it, but, on being pressed for an explanation by the counsel for appellant, he told just what he meant by the expression alleged to have been used by him at the coroner's inquest. We find nothing prejudicial in the refusal to admit the testimony thus offered for impeachment purposes.

[2] II. It is next contended by the appellant that the court erred in permitting the introduction of the testimony of Dr. Stanton as to statements made to him by the defendant while on the way from Mt. Ayr to Creston, for the reason that these statements were made at a time when the witness Dr. Stanton was acting in his professional capacity as a physician for defendant, and were confidential communications. Code, § 11263, provides: “No practicing attorney, counselor, physician, surgeon, * * * shall be allowed, in giving testimony, to disclose any confidential

[267 N.W. 701]

communication properly intrusted to him in his professional capacity, and necessary and proper to enable him to discharge the functions of his office according to the usual course of practice or discipline.”

Appellant relies on Battis v. Railway Company, 124 Iowa, 623, 100 N.W. 543, 545. In that case “the interrogatories propounded to the physician were intended to elicit from him certain facts respecting the condition of plaintiff, and it is manifest that whatever knowledge the witness possessed was acquired from the statements made to him by plaintiff, and from his own examination and observation.” The questions asked by the...

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18 practice notes
  • Van Wie v. United States, Civ. No. 403.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • April 3, 1948
    ...or patient or both of them. Pride v. Accident Ass'n, supra; State v. Masters, 1924, 197 Iowa 1147, 198 N.W. 509, State v. Johnston, 1936, 221 Iowa 933, 267 N.W. 698; Sutcliffe v. I. S. T. M. Ass'n., 1903, 119 Iowa 220, 93 N.W. 90, 97 Am.St.Rep. 298; Raymond v. B. C. R. & N. R. Co., 1884, 65......
  • State v. Kellogg, No. 59659
    • United States
    • United States State Supreme Court of Iowa
    • March 22, 1978
    ...deceased is admissible"); State v. O'Donnell, 176 Iowa 337, 157 N.W. 870; State v. Flory, 198 Iowa 75, 199 N.W. 303; State v. Johnston, 221 Iowa 933, 267 N.W. 698. See also, 40 Am.Jur.2d, Homicide § 274 at 540-541 (quarrels, altercations, and hostile acts); 40 C.J.S., Homicide § 241 at As t......
  • Grandsinger v. State, No. 33663
    • United States
    • Supreme Court of Nebraska
    • December 16, 1955
    ...no evidence which could require the instruction to be given.' See, also, Mantell v. State, 141 Neb. 15, 2 N.W.2d 586; State v. Johnston, 221 Iowa 933, 267 N.W. 698. Such authorities are applicable and controlling in the case at bar. Defendant's contention should not be Defendant argued that......
  • State v. Fowler, No. 58472
    • United States
    • United States State Supreme Court of Iowa
    • December 15, 1976
    ...Trybom is difficult to perceive. We note, however, 41 C.J.S. Homicide § 387, accords with the Trybom holding. See also State v. Johnson, 221 Iowa 933, 941--942, 267 N.W. 698 (1936); State v. Friar, 204 Iowa 414, 415-416, 214 N.W. 596 (1927). See generally Mullaney v. Wilbur, 421 U.S. 684, 6......
  • Request a trial to view additional results
18 cases
  • Van Wie v. United States, Civ. No. 403.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • April 3, 1948
    ...or patient or both of them. Pride v. Accident Ass'n, supra; State v. Masters, 1924, 197 Iowa 1147, 198 N.W. 509, State v. Johnston, 1936, 221 Iowa 933, 267 N.W. 698; Sutcliffe v. I. S. T. M. Ass'n., 1903, 119 Iowa 220, 93 N.W. 90, 97 Am.St.Rep. 298; Raymond v. B. C. R. & N. R. Co., 1884, 65......
  • State v. Kellogg, No. 59659
    • United States
    • United States State Supreme Court of Iowa
    • March 22, 1978
    ...deceased is admissible"); State v. O'Donnell, 176 Iowa 337, 157 N.W. 870; State v. Flory, 198 Iowa 75, 199 N.W. 303; State v. Johnston, 221 Iowa 933, 267 N.W. 698. See also, 40 Am.Jur.2d, Homicide § 274 at 540-541 (quarrels, altercations, and hostile acts); 40 C.J.S., Homicide § 241 at As t......
  • Grandsinger v. State, No. 33663
    • United States
    • Supreme Court of Nebraska
    • December 16, 1955
    ...no evidence which could require the instruction to be given.' See, also, Mantell v. State, 141 Neb. 15, 2 N.W.2d 586; State v. Johnston, 221 Iowa 933, 267 N.W. 698. Such authorities are applicable and controlling in the case at bar. Defendant's contention should not be Defendant argued that......
  • State v. Fowler, No. 58472
    • United States
    • United States State Supreme Court of Iowa
    • December 15, 1976
    ...Trybom is difficult to perceive. We note, however, 41 C.J.S. Homicide § 387, accords with the Trybom holding. See also State v. Johnson, 221 Iowa 933, 941--942, 267 N.W. 698 (1936); State v. Friar, 204 Iowa 414, 415-416, 214 N.W. 596 (1927). See generally Mullaney v. Wilbur, 421 U.S. 684, 6......
  • Request a trial to view additional results

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