State v. Leib

Decision Date11 December 1924
Docket Number36390
Citation201 N.W. 29,198 Iowa 1315
PartiesSTATE OF IOWA, Appellee, v. OLIVER LEIB, Appellant
CourtIowa Supreme Court

Appeal from Dubuque District Court.--D. E. MCGUIRE, Judge.

THE defendant was indicated for the crime of murder in the first degree, and upon trial was convicted of said offense.--Reversed.

Reversed and remanded.

John J Kintzinger, for appellant.

Ben J Gibson, Attorney-general, Maxwell A. O'Brien, Assistant Attorney-general, and A. J. Kane, County Attorney, for appellee.

FAVILLE J. ARTHUR, C. J., and EVANS and PRESTON, JJ., concur.



In the winter of 1923, appellant and one John Kirkpatrick were engaged in cutting timber in Deubuque County. The two men lived in a cabin located in the timber, about a mile and a quarter from the nearest house, and about the same distance from any road. The cabin was a small building, with two rooms on the first floor. On Sunday, January 21, 1923, appellant and Kirkpatrick spent a portion of the day at the home of one Lahr, leaving there, with Kirkatricks' horse and buggy, about seven o'clock in the evening. While at Lahr's place, the parties all drank liquor, and both appellant and Kirkpatrick were considerably under its influence when they left. Nothing further was seen of either party by any witness until the following Tuesday, when appellant again appeared at Lahr's place, at about nine o'clock in the morning, driving Kirkpatrick's horse. At that time, he told Lahr that he had taken Kirkpatrick to Cascade, to take the train for a visit with his daughter in Wisconsin. He requested Lahr to go with him to the cabin and get some of his clothes and other things, and this was done. Two days later, appellant again went to the home of Lahr, with Kirkpatrick's horse and buggy, and made arrangements with Lahr to keep them there. While at the cabin on the first trip, appellant gave Kirkpatrick's watch to Lahr, and after they had returned from the cabin to Lahr's home, he gave Marcella Lahr, Kirkpatrick's watch chain.

On August 10, 1923, a woman, while picking berries in the timber about three quarters of a mile from, the cabin, found the body of Kirkpatrick. An examination disclosed a fracture at the base of the skull.

On February 2, 1923, appellant told the witness Beaman that he had killed Kirkpatrick in a fight, and that they had tussled for possession of a shotgun, and that the gun went off. and appellant struck Kirkpatrick over the head with the gun barrel, and that he took the body to the woods and covered it up. In February, he also told one Ingles that he had killed Kirkpatrick.

Appellant was arrested on August 14, 1923, and after his arrest, told the sheriff the details about the killing of Kirkpatrick. In brief, his story was that he and Kirkpatrick drank considerable liquor on the visit at Lahr's, and when they arrived at the cabin, it was dark, and there were no Lights in the housel that he went into the cabin first, and immediately began to fix the fire in the stove, and was on his hands and knees, so employed, when Kirkpatrick came into the room and came over to where appellant was by the stove, and kicked him in the mouth, knocking appellant over backward; that, when he went to raise up, Kirkpatrick again kicked him; that, in the darkness, he reached up in the air, and felt the gun barrel; that he had Kirkpatrick each had hold of the gun at the same time; and that they tussled for its possession, and the gun broke in two, leaving the stock in the hands of Kirkpatrick, and the barrel in the hands of appellant. Before it so broke in two, it was discharged. Appellant stated that he swung the part of the gun he had, in the air, and hit Kirkpatrick, knocking him down. He stated that he then went out of doors, and shortly afterward returned, and went upstairs, where he slept. In the morning, he found, Kirkpatrick's body lying on the floor near the stove, downstairs, and he took, the body lying on the floor near the stove, downstairs, and he took the body on a sled, and blow drew it to the place in the woods where it was afterwards found.

About the time of appellant's arrest, the cabin was searched, and various articles were found therein, including the stock of the gun. At the time appellant went to Lahr's, after the killing, he told Lahr that the barrel of the shotgun was under the seat in the buggy; and it was found there.

I. Appellant contends that the court erred in receiving evidence, over appellant's objection, as to the condition of the cabin and the surroundings thereof in August of 1923, without there being first a preliminary showing that the conditions discovered at that time were the same as they were on or about January 2, 1923.

We think the court did not err in the admission of this testimony. The cabin was in an isolated place, and there is no claim of any kind that any person except appellant had access to it, or had occupied if from the time of the tragedy until the examination of the premises, in August, 1923. The testimony as to the conditions so discovered was properly received.

II. Appellant contends that the court erred in receiving evidence as to different names by which appellant had been known. It appears that he went by the name of "Frenchy," and also "Scott." These appear to have been merely nicknames by which appellant was known, and the witnesses referred to him by these names.

We do not see how this evidence could have been prejudicial to appellant, or how it would have had any tendency to inflame the minds of the jury against him. There was not error here.

III. A witness for the State testified that he paid Kirk-patrick certain money; once in November, 1922, and again in January, 1923, being about $ 50. The theory is that this testimony was admissible as tending to show a motive on the apart of appellant. There was no showing that appellant had any knowledge that said money had been paid to the decedent. The evidence also shows that, about two days after the tragedy, appellant borrowed $ 8.50 from the witness Lahr.

The fact that the decedent had been paid the money referred to, prior to the time of the tragedy, not in the presence of appellant, and without any proof of circumstances from which it could be inferred that appellant knew that the decedent had received said money, and without any proof that decedent had it at or about the time of the tragedy, was wholly immaterial in the case, and the court should have excluded this item of testimony from the record, on appellant's motion.

IV. The State produced as an expert a physician, who made an examination of the skull of the decedent, and the skull itself was produced before the jury as an exhibit, and examined by the physician in connection with his testimony. Complaint is made of a question propounded to the expert as to how a skull could be fractured in the manner in which decedent's skull was broken. The physician described that the blow would have to be low, and be directed obliquely upward, in order to strike the part of the skull that was broken. The physician did no more than state what must have been obvious to the jury, from an examination of the skull and their general knowledge of anatomy regarding the position of the skull and its relation to the body, and was only asked, in any event, to testify as to how the fracture could have occurred. The testimony of the expert did not invade the province of the jury, and the court did not err in receiving it.

V. The boards in the partition of the cabin through which the shot had been fired were removed, and offered as exhibits, upon the trial of the case. They showed where shot had passed through the boards, and it appeared that tooth-picks had been inserted in the shot holes in the boards, indicating the course of the shot; and a witness for the State was permitted to testify that the tooth-picks pointed in the direction of the door of the cabin.

There was no error in the admission of this testimony. It was simply a proper method of bringing before the jury the fact of the direction and course of the shot that were fired through the boards.

VI. Appellant complains that certain exhibits which were found in August, 1923, in and about the cabin, were received in evidence without any previous showing that these conditions were the same as at the date of the tragedy.

As before stated, there is no claim that any person except appellant had occupied the cabin or interfered with it in the least, from the date of the tragedy until the time of the finding of the exhibits. The exhibits so offered were proper for the consideration of the jury, upon the record as made, and the court did not err in receiving them.

In this connection, error is also predicated upon the admission in evidence of certain photographs, which it appears were taken in August, 1923. We think the record shows that the proper foundation was laid for the admission in evidence of the photographs, and that nor error was committed at this point.

VII. The sheriff of the county testified as a witness, as follows: "I afterward found the watch at Theodore Lahr's, and Theodore Lahr told me he had received it from Leib."

A motion to strike out the last clause of the statement, as hearsay, was overruled. It should have been sustained. There is no claim that the...

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