State v. Kilduff

Decision Date06 June 1913
Citation141 N.W. 962,160 Iowa 388
PartiesSTATE OF IOWA, Appellee, v. ANNA KILDUFF, Appellant
CourtIowa Supreme Court

Appeal from Scott District Court.--HON. A. J. HOUSE, Judge.

DEFENDANT indicted for murder in the first degree. Trial to a jury. Defendant convicted of manslaughter. Defendant appeals.

Affirmed.

W. M Chamberlain and R. C. Williamson, for appellant.

George Cosson, Attorney-General, and John Fletcher, Assistant Attorney-General, for the State.

OPINION

GAYNOR, J.

On the 24th day of November, 1911, the grand jury of Scott county returned an indictment against the defendant, charging her with the crime of murder in the first degree. Defendant being arraigned and a plea of not guilty having been entered, the cause was tried to a jury, and the defendant found guilty of manslaughter. Motion for a new trial was made and overruled and judgment was entered upon the verdict. From this judgment, the defendant appealed to this court.

Defendant assigns as error:

First. That the county attorney in his closing argument to the jury was guilty of misconduct.

Second. The court erred in not sustaining defendant's motion for a new trial, based upon the misconduct.

Third. That the court erred in the admission of testimony.

Fourth. That the court erred in instructions given, and in refusing to give instructions asked by the defendant.

The defendant sets out in his printed argument, in substance, what the testimony showed, and this is by the plaintiff's attorney conceded to be practically all the evidence submitted to the jury.

The evidence is that the defendant left the home of her mother, where she was living, on the afternoon of October 30, 1911, the day of the alleged crime, at about 2 o'clock in the afternoon, having a revolver in her possession belonging to her sister; that she came by way of the street car down to the business section of Davenport and was seen at a five and ten cent store and walking about the streets; that about five o'clock she was seen by Ed. Kilduff, brother of the deceased, standing in the doorway near the entrance to the fish market, where deceased was working; that it was raining at this time; that, as Ed. Kilduff came out of the fish market, she stopped him and asked him to tell her husband, the deceased, to come out; that she was told he was not there; that she refused to believe this and said that she would go and get him if he did not come out. The brother asked her to wait and he would see if he could find her husband. He went inside and came back and told her that her husband had gone away to see the doctor and would not be back that evening; that the defendant then went inside the building where her husband was working and up to a closet where her husband was hiding and demanded several times that he come out; then that he finally came out; that they talked together for some minutes; that her husband then went into another room of the building; that the defendant requested another man employed in the place to have John come out; that her husband came out again and into the room where defendant was, and that a few minutes later a shot was heard, and that shortly thereafter the defendant was seen to come and look into the adjoining room and then step out of sight, repeating this action three or four times; that shortly thereafter the defendant was seen walking away from the building and her husband was found lying dead with a bullet wound in his head, near the left eye, in the room where he and the defendant had been; that the death of deceased was found to have been caused by said wound; that the defendant walked from said building to the police station and there stated, "Here is my hand bag; my revolver is in there. I shot my husband."

As bearing upon defendant's mental condition at the time and the causes thereof, the evidence is that the defendant and John Kilduff, the deceased, were married in 1907, when the defendant was about seventeen years of age; that at the time of said marriage the defendant was pregnant by a man named Kuehl, to whom she was engaged to be married, but who was drowned shortly before the marriage was to have taken place; that her husband was informed as to her condition previous to the marriage and stated his willingness to marry her, notwithstanding her condition, and expressed sorrow for her; that said marriage took place July 20, 1907; that a child was born to defendant November 4th following; that two children were born to the defendant and John Kilduff, one born in the latter part of the year 1908, and the other about a year later; that John Kilduff contributed little, if anything, to the support of his wife and family; that in May, 1911, John Kilduff deserted the defendant and his children and refused to live with them thereafter, or contribute to their support; that the defendant at the time was in a destitute condition and was compelled to rely upon her family to help support her children and herself; that about the time her husband left her she was told that her husband was associating with other women; that at about this time she had seen her husband in company with a colored woman and stated that she had been informed that he was keeping company with a colored woman and having a regular honeymoon with her at a hotel; that during the summer and fall of 1912 the defendant was nervous and despondent and unable to work regularly, and several times threatened to kill herself, and at other times she was unusually and unaccountably cheerful, and then again she would cry for no apparent reason and sit with her head in her hands, and refuse to answer when spoken to; that she met her husband on several occasions after he left her, at which times he suggested that he would live with her and take care of her only upon condition that she would assist him in conducting a house of ill fame; that, at the time of her marriage, the defendant was strong and healthy, but that in the summer and fall of 1912 she became so pale and reduced in weight that a neighbor of hers at the time of her marriage failed to recognize her at the later period.

The evidence further shows that the defendant as a child was able to make little progress at school; that her father committed suicide while insane; that she has a brother who is weak-minded, and has been an inmate of the State Institution at Glenwood; that upon the date of her arrest for the killing of her husband her conduct and appearance was such that she impressed the police matron, Mrs. G. W. Hill, who had her in charge, as being weak-minded; that between the time of her arrest and the time of trial the defendant manifested little, if any, interest in, or realization of, proceedings taken concerning her.

The first assignment of error is that the county attorney was guilty of misconduct in his closing address to the jury; and the second error is that the court erred in not sustaining defendant's motion for a new trial on that ground. These questions we cannot consider for the reason that they are not properly presented to this court, on bill of exceptions, as required by section 5418 of the Code of 1897.

It appears that the bill relied upon as constituting a bill of exceptions, as set out in the abstract, was not signed or certified to by the judge of the court. It appears that it was presented to the judge on May 6, 1912, and refused; that thereafter the attorneys for the defendant signed the bill of exceptions so presented to the judge and swore to the same as containing a true bill of exceptions; and that the statements therein were true. It appears also that the statement set out in the bill of exceptions presented to the court, and which he refused to sign, are denied in an affidavit filed by the county attorney.

The statute provides: "Either party may take an exception to any decision or action...

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