State v. Leuhrsman
| Decision Date | 08 April 1904 |
| Parties | THE STATE OF IOWA, Appellee, v. B. H. LEUHRSMAN, Appellant |
| Court | Iowa Supreme Court |
Appeal from Benton District Court.--HON. OBED CASWELL, Judge.
INDICTMENT for assault with intent to inflict great bodily injury upon one Henry Pickart. The defendant was convicted, and appeals.
Affirmed.
M. J Tobin and Tom H. Milner for appellant.
C. W Mullan, Attorney General and L. De Graff, Assistant Attorney General, for the State.
The defendant having filed a motion for continuance because of the absence of a material witness, and the court having intimated that the showing was sufficient, counsel for the state announced that he would admit that the witness, if present, would testify as stated in the affidavit, and thereupon the motion was overruled and the trial proceeded. When counsel for defendant offered to read the matter stated in the affidavit as the testimony of the absent witness, the state objected to certain parts of said statement, but assigned no specific ground of objection. The court sustained the objection, and allowed but a part of the statement to be given to the jury. It is first argued that, the state having admitted that the absent witness would testify as claimed in the motion for continuance this concession was in effect a consent that the entire statement be read to the jury. That this is not the rule in Iowa has been several times decided. The admission that the witness will swear to certain alleged facts is not an admission that such facts are competent evidence. Whether expressly reserved or not, the state retained the right to object to the testimony when offered to the same extent as it might properly do, were the witness present in person and being interrogated upon the same matter. State v. Geddis, 42 Iowa 264; State v. Sater, 8 Iowa 420.
It is further called to our attention that the objection sustained by the court was not specific, and therefore insufficient. The record sets out the statement, and designates the language excluded by the court. It appears therefrom that, for reasons hereinafter mentioned, the matter excluded was irrelevant and immaterial to the issue being tried; and therefore, while the ruling was technically erroneous, the error was without prejudice. Had the court overruled the objection and admitted the testimony, the state could not have complained, for the very good reason that its objection was too general. This, we think, is the extent of the rule applied by this court in the cases cited. Puth v. Zimbleman, 99 Iowa 641, 68 N.W. 895; State v. Beebe, 115 Iowa 128, 88 N.W. 358; Fairbanks Case, 79 Iowa 282, 44 N.W. 548. In other words, these authorities are to the effect that, a proper ground of objection not being assigned, it is not error for the court to overrule it; but it does not follow it would be prejudicial error to sustain the objection, even upon an insufficient ground, if the testimony so excluded is manifestly of an improper character.
II. Appellant sought in various ways to prove that at the time of the alleged assault, and on other occasions prior thereto the complaining witness had indulged in derogatory remarks concerning appellant, and accused him of undue fondness "for women and wine," and that it was under such provocation that the assault was made. The court quite uniformly sustained the state's objection to this line of evidence, although, by the persistence and ingenuity of counsel much of it found its way into the record; and to that extent the objection, even if well taken, was obviated. But we think the ruling was correct. It needs no citation of authorities to the point that verbal abuse and insults constitute no defense to a charge of assault. Such circumstances may properly be presented to the court for its consideration in mitigation of punishment, but to permit them to be given to the jury serves inevitably to divert attention from the real issue into an inquiry into the merits of the quarrel which inspired or provoked the alleged abusive language. The case before us well illustrates the tendency we have mentioned. It appears that the appellant and complaining witness, Henry Pickart, were members of the Catholic congregation in the local parish of which the appellant's brother was priest in charge. According to the testimony of Pickart, the appellant came to the residence of the witness on the evening before the assault, and informed him that the priest and others of the congregation wished to meet him at the priest's house that evening. It is not expressly stated, but it may be inferred, that the ostensible purpose of the meeting was to settle the differences between the parties in accordance with the laws and usages of the church. Pickart did not go until the next morning, when he telephoned the priest, asking in regard to the appointment, and the priest replied, that the "body" or committee was not there, but the witness could come up anyway. After Pickart reached the priest's house, the appellant soon arrived, and asked Pickart if he meant to call him to his face what he had called him to the priest, and on being answered in the affirmative, promptly struck Pickart, knocking him down, and continued to beat him until the priest interfered. The result was that Pickart's nose was broken, and he was otherwise badly bruised. Pickart, who has a withered arm, was sitting down when assaulted, and...
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