State v. Krampe
| Decision Date | 08 April 1913 |
| Parties | STATE OF IOWA v. LEO KRAMPE, Appellant |
| Court | Iowa Supreme Court |
Appeal from Jasper District Court.--HON. BYRON W. PRESTON, Judge.
THE accused was convicted of having committed murder in the first degree, and appeals.
Affirmed.
E. J Salmon and H. Silwold, and Parsons & Mills, for appellant.
George Cosson, Attorney General, John Fletcher, Assistant Attorney General, and Ross Mowry, County Attorney, for the State.
OPINION
On the 24th of February, 1911, Matilda Hermsmeier was found on the floor at her home dead, with a 32 caliber bullet in her brain. She had lived alone three-quarters of a mile north and a little east of Baxter since her mother's death, some six or seven years previous and was last seen in Baxter two weeks before. Some time afterwards the defendant was subpoenaed to appear before the grand jury, and upon being questioned by a detective and the deputy sheriff, with whom he had ridden from his home, related, in substance, that he had tried to borrow money of deceased, and later had purchased nine head of cattle from her, but thereafter stated that what he had said previously was almost wholly untrue and that he had been at her house February 11, 1911, and then saw her dead on the floor; that he returned February 15th shortly before daylight; that her body was still lying on the floor; that he went to Baxter, and, having hired two horses and a man, returned and drove the cattle to his place. Thereafter he made another statement that he had tried to borrow money of her February 7, 1911, and failed; that subsequently he had a talk with one Gist, who suggested that he would get rid of Miss Hermsmeier; that defendant should drive the cattle away, and that they should divide the money for which these were sold; that he (defendant) went to her house shortly after dark on February 11th to see if Gist had done what he proposed, and then saw deceased on the floor dead, and a lamp on the table burning; that he again visited the place just before daylight February 15th, when he observed her as before, and in the afternoon drove the cattle away and subsequently sold them for $ 215, of which he had paid $ 100 to Gist. These several statements were reduced to writing and signed by defendant. Gist denied having been acquainted with defendant, and also that he had been concerned in the transaction.
Other evidence tended to show that defendant had purchased 32 caliber bullets about February 1st; that he had stolen the nine cattle February 15th; that he made the several statements voluntarily and also tended to corroborate the details of the last of these, other than the portion tending to implicate Gist. In behalf of defendant, the evidence tended to show that deceased was about her premises February 14th; that February 15th defendant attended a sale some distance from the place of deceased; and that a man was seen near her barn on February 21st.
Not all the details have been recited, but enough to indicate that the evidence was sufficient to sustain the verdict. That he stole the cattle was conclusively established; and the circumstances in connection with defendant's admissions tended to single him out as the perpetrator of the offense, the commission of which by some one was established otherwise than by his confession. We are not inclined to interfere with the verdict.
II. Two members of the regular panel of jurors were challenged for cause in that they had formed or expressed an unqualified opinion of the guilt or innocence of defendant which would require evidence to change. Neither of them had been acquainted with him. Both were without personal bias. Anderson was a traveling man and testified that, from what he had heard and read, he had formed an opinion as to the guilt or innocence of defendant, and that ordinarily his opinions were pretty strong or fixed; that he based his opinion on newspaper reports, but that these did not refer to the evidence; and his examination, as a whole, indicated that he could, upon hearing the testimony and the instructions of the court, base a verdict thereon and not upon any preconceived notions that he may have had concerning the guilt or innocence of the accused. The cause had been tried twice before in the same county, and it could not reasonably be expected that men of intelligence, living in the community, could be found for jury service who had not heard and read something of the transaction. As said in State v. Rohn, 140 Iowa 640, 119 N.W. 88: "A person is qualified if, notwithstanding any impressions he may have received from reading or hearing, he appears to be fair-minded and free from prejudice and able and willing to render an impartial verdict. " See, also, State v. Hudson, 110 Iowa 663, 80 N.W. 232; State v. Hassan, 149 Iowa 518, 128 N.W. 960.
While some parts of the examination indicated that Anderson's preconceived information might interfere with returning a true verdict, yet upon considering his examination as a whole, as should be done (State v. Foster, 91 Iowa 164, 59 N.W. 8), it is manifest that he did not entertain an unqualified opinion as to defendant's guilt or innocence. Clark had never seen the defendant until the trial, but had read about the case and talked with those who claimed to know the facts, including a juror on the second trial, but he had taken very little part in the discussion. He had expressed some opinion, but thought his mind was not made up so that evidence of a positive nature would not change it. Though saying that evidence would be required to remove his opinion, he thought he could render a true verdict on the evidence and instructions given by the court, and said he did not see any reason why he could not. The answers of neither Anderson nor Clark bring the case within the rule of State v. Crofford, 121 Iowa 395, 96 N.W. 889, followed in State v. John, 124 Iowa 230, 100 N.W. 193. Neither served on the jury. There was no error in overruling the challenges for cause.
III. One Thorpe testified to having a conversation with defendant two or three days after the body was found in which he asked him "what he wanted to go and kill that old woman for and then steal her cattle." His answer was, "Most anybody would do it under the same circumstances." On cross-examination the witness said he was "simply joking and Leo (defendant) answered in a joking way." This was objected to as "calling for the opinion and conclusion of the witness and hearsay" and sustained; the court saying he did not "see that it made any difference whether anybody else said that or not." Possibly, had the question been more definite, an answer might have had a tendency to have explained the conversation, if any were needed; but, as neither the locality where nor the associates among whom this talk was indulged was indicated, the ruling ought not to be disapproved.
IV. In the course of his opening argument to the jury, the county attorney said, in substance: "There were only two living witnesses testified as to whether these written instruments were voluntary or not; the evidence of Harry Grove is substantially undenied, and, if his evidence is false, they would have adduced evidence to show that it is false." To this statement the defendant excepted, for that he was the only other witness who was cognizant of the fact, and for this reason what was said necessarily referred to his failure to testify. But such a conclusion does not necessarily follow. According to the evidence, the county attorney was present when the first two statements were made, and, for all that appears, he or others may have been present when the last was made.
In State v. Seely, 92 Iowa 488, 61 N.W. 184, the county attorney referred to the fact that the record did not show any evidence denying the sexual intercourse, the promise of marriage, or the seduction; and it was contended that, inasmuch as the accused was the only person who could have given evidence on these matters, this amounted to a reference to defendant's failure to testify in his own behalf, but the court held otherwise.
In State v. Snider, 119 Iowa 15, 91 N.W. 762, the court said that:
In State v. Hasty, 121 Iowa 507, 96 N.W. 1115, the county attorney remarked in argument that "there has been no witness on the stand contradicting the very material evidence of Mrs. Hasty, and no witness has been on the stand as to the cow barn transaction"; and it was contended that as the only person who could contradict or go on the stand with relation to the matter was defendant, as the other was dead, this must have referred to defendant's failure to testify, but the court held otherwise, saying: ...
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