State v. Klute

Decision Date10 April 1913
Citation140 N.W. 864,160 Iowa 170
PartiesSTATE v. KLUTE.
CourtIowa Supreme Court


Appeal from District Court, Boone County; R. M. Wright, Judge.

On an indictment for murder in the first degree, defendant was convicted of murder of the second degree, and sentenced to imprisonment in the penitentiary for 15 years, from which sentence he appeals. Affirmed.D. G. Baker, of Boone, for appellant.

George Cosson, Atty. Gen., and John Fletcher, Asst. Atty. Gen., for the State.


The case has been submitted by appellant on typewritten abstract and arguments. His counsel have assigned 98 errors relied upon for reversal, duplicated the 98 propositions in his points and authorities, then argued them in still another division of the argument. Some of the points have been argued at considerable length, thus making a voluminous record. We appreciate the importance of the case, and have read the record with care. It would not, of course, be practicable to notice all the propositions, but those which seem to be controlling will be discussed.

[1] 1. Appellant complains that the trial court refused to consider his requested instructions. It appears that counsel for defendant handed to the court a package containing 22 instructions, which the court examined, and some of which were given by the court by embodying them in its own; the rest were marked refused. The court stated that it supposed the first set of instructions handed up by counsel for appellant were the ones he wanted the court to give to the jury; that those which he marked refused were handed by the court to the clerk, with instructions to file the same, which was done; that the court did not ascertain until after the trial, that some of the instructions in a second set were different from those which had been passed upon by the court; the court further stated that, if he had known that the second set of instructions were in any respect different from those that were passed upon by the court, he would have examined the same.

Counsel claims in his affidavit attached to the motion for new trial substantially that at the time these were handed up he informed the court that he might desire to correct some of them, or make additions to them. The court in its ruling on the motion for new trial and statement, or finding in reference to this matter, does not remember the transaction as counsel states it. Later, counsel filed with the clerk another set or package, consisting of 26 instructions, and requested the clerk to file them, and to then pass them to the court. The clerk did place them on the court's desk. The court examined the first one, and found it to be the same as the first one in the other package, and supposing the others were the same, and that one package was a carbon copy of the other, paid no further attention to the second set. While there is no requirement by statute that a request for instructions must be formally made, or made in writing, yet we think the statute does contemplate that the person asking instructions shall so present them to the court that the court may know they are being asked. The request should be made by counsel in such a way that there would be no misunderstanding that a request is made. In the instant case the second set of instructions was not even handed to the court by appellant, his counsel, or any person representing him. The instructions given by the court fully cover every question in the case, and we have to say that the instructions requested by appellantin both sets were fully covered by the instructions given by the court.

2. A written dying declaration of deceased was admitted in evidence. Defendant objected to the statement as a whole, and to certain parts of it, on the ground that it contained matters not properly admissible as a dying statement, for the reason that as to some of such matters deceased could not have been permitted to testify had he been a witness, and as to other matters that opinions and conclusions were stated.

[2] It cannot be fairly claimed that the foundation was not sufficient. The shooting occurred about 11 o'clock on the night of December 23, 1911. Deceased was shot in the abdomen; the bullet cutting the intestines in several places. Deceased was informed by the physician that the wound was mortal. From statements made by deceased to others, and in the written declaration itself, his mind was impressed with the feeling of impending death, and he did die Tuesday morning, December 26th.

A brief statement of the facts in regard to the shooting will give a better understanding of the objections made to the dying declarations. The shooting took place in defendant's home. Deceased came there at about 8 o'clock in the evening and stayed until about 11 o'clock. For two or three years deceased had been going to defendant's house at night to visit and drink with defendant, sometimes staying all night. About July, 1911, defendant claims that deceased insulted his wife, and that he ordered deceased to not come to his house again. He claims that, when deceased came there on the evening of the 23d, he did not wish deceased to come in, and so told him. Deceased did come in, however, and he and defendant visited together and drank together. Defendant claims that on this evening, and on other evenings when deceased had been there, he had ordered him to go home; but we are impressed with the thought that these were more requests to go home because it was late, and bedtime, than for any other reason. It appears that deceased did not visit defendant's home after July until the evening in question, but in the meantime they had drank together at other places, and there had been some business dealings between them, and that at one time deceased helped defendant when his team had become mired in the sand. These transactions last referred to were after July, and after defendant claimed deceased had insulted the wife. Defendant and his wife testified on the trial in regard to the alleged insult to defendant's wife, although the wife is impeached by several witnesses to whom she said that it was not true. Defendant's only defense was that the shooting was accidental. The dying declaration recites the version of deceased in regard to the shooting and the transactions of the evening, and that defendant did the shooting. The declaration is somewhat lengthy, so that we do not deem it necessary to set out the whole writing.

[3] It is well understood that dying declarations are only admissible as to the facts which point to the cause of death, and to the circumstances producing and attending it, and the general rule is that matters of opinion and conclusions are inadmissible; that they are admissible only as to those things to which the deceased would have been competent to testify. State v. Baldwin, 79 Iowa, 714, 45 N. W. 297;State v. Perigo, 80 Iowa, 37, 45 N. W. 399;State v. Sale, 119 Iowa, 1, 92 N. W. 680, 95 N. W. 193;Worthington v. State, 92 Md. 222, 48 Atl. 355, 56 L. R. A. 369, 84 Am. St. Rep. 506; 21 Cyc. 973.

[4] One of the statements in the declaration of which complaint is made is, He just deliberately shot me.” As to this statement, the matter is ruled by State v. Fielding, 135 Iowa, 255, 112 N. W. 539, where substantially the same statement was made and was held admissible and proper, the court saying that the statements related to the act or transaction of the killing, and that, while they were general in their nature, they tended to prove a collective fact involving the defendant's guilt.

[5] Other statements complained of are, “I thought we were friendly again;” another, “I didn't have anything to do with his wife last night except to exchange a word or two;” another, “I have never at any time insulted his wife.” It should be said in this connection that when objection was made to the dying statement, and the different parts, the court in ruling on the objection said: “In view of what was said by counsel for the defendant in his opening statement to the jury, I will admit it.” What defendant's counsel did say to the jury does not appear in the record. But, as we have shown, the defendant and his wife testified to facts tending to show that there had been ill feeling between defendant and deceased because of the alleged insult to defendant's wife, and that deceased had in fact insulted her. It is quite clear that, if deceased had been living and a witness, he would have been permitted, in rebuttal at least, to testify to all these matters which we have quoted as being contained in the dying statement.

[6] It may be that some of these statements would have been rebuttal, but the order of the introduction of testimony is a matter of discretion with the trial court. Under the circumstances here shown, we think it is a proper inference that counsel in his opening argument did claim that deceased had insulted defendant's wife, and that they were unfriendly.

In Redmond v. Commonwealth, 51 S. W. 565, 21 Ky. Law Rep. 331, a part of the dying declaration was admitted in chief and a part in rebuttal.

In West v. State, 7 Tex. App. 150, the

statement was, in substance, that deceased said he had not insulted defendant's mother,” and the court said that if the admissibility of this testimony were to be tested alone by the bill of exceptions, and passed on as there stated, it would fail to see that the portion of the witness' statement as to what the deceased said as to the cause of the quarrel could be said to be a statement of the circumstances of the death, yet, when taken in connection with the rest of the statement, they were of opinion the objectionable portion was so intimately interwoven with the thread of the narrative that it could not be separated without marring, if not destroying, the sense; and, taking this in connection with the other testimony bearing on the same subject, they were unable to see that the error, if any, was material.

In Cleveland v. Commonwealth, 101 S. W. 931, ...

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