State v. McClain

• Decision Date: 14 January 1964
• Docket Number: No. 51016,51016
• Citation: 125 N.W.2d 764,256 Iowa 175
• Parties: , 4 A.L.R.3d 134 The STATE of lowa, Appellee, v. Isam McCLAIN, Appellant.
• Court: Iowa Supreme Court

Page 764

125 N.W.2d 764

256 Iowa 175, 4 A.L.R.3d 134

The STATE of lowa, Appellee, v. Isam McCLAIN, Appellant.

No. 51016.

Supreme Court of Iowa.

Jan. 14, 1964.

Rehearing Denied March 10, 1964.

C. A. Freriches and Joe Nutting, Waterloo, for appellant.

Evan Hultman, Atty. Gen., John H. Allen, Asst. Atty. Gen., Des Moines, William C. Ball, County Atty., and John Beekman, Asst. County Atty., Waterloo, for appellee.

SNELL, Justice.

The Grand Jury of Black Hawk County returned an indictment charging defendant, Isam McClain, with the crime of murder. He was accused of burning his wife. He pleaded not guilty, was tried before judge and jury, found guilty of murder in the second degree, and thereafter sentenced pursuant to statute. On appeal he alleges procedural errors, and violation of his rights to due process and fair trial.

The sufficiency of the evidence, if properly received, to sustain a conviction is not challenged.

The evidence was extensive but we will set out only such parts thereof as may be germane to the alleged errors.

Between 3 and 4 A.M. on August 19, 1962 defendant returned home from a night of carousing. Shortly after he arrived home he had an argument with his wife. Such an argument was nothing new. About a month prior thereto his wife stuck defendant twice with a pitchfork because he was running around with other women. Defendant admitted hitting his wife twice and that she fell across the bed. He testified that he then went to the kitchen and ate two sandwiches. He said that he then went to the bedroom, discovered a fire, attempted to put it out and throw out what was burning. This included a mattress that he dropped at the front door. According to defendant he stood in the front yard and said 'If she set the God damn place afire, let the God damn place burn.' He testified that he then spent several hours wandering around town looking for his wife, stopping at a friend's house to play a record, calling his employer for an advance on his wages and visiting various clubs. He learned that the police were looking for him and identified himself to a detective.

Mr. and Mrs. Crumbaugh lived next door to defendant's house. About 4 A.M. on August 19, 1962 they were wakened by 'hollering.' They looked out the window. They saw the fire next door. Mr. Crumbaugh saw defendant in the yard and heard him utter an obscenity. Mrs. Crumbaugh saw defendant throw water on the fire. That is all either of them saw of defendant.

Defendant's wife came to the Crumbaugh house. She was badly burned. She asked Mr. Crumbaugh 'to call the law.' He refused. Defendant's wife was in the Crumbaugh house about six minutes. She then went out and sat on the steps. Mr. Crumbaugh said he did not see the woman's injuries because the house lights were not turned on. While defendant's wife was on the steps Mr. Crumbaugh heard her say 'Don't touch me under here, I am burned up.' Mrs. Crumbaugh heard her say 'Mac poured gas on me and burned me up.'

The burned woman was taken to the hospital in a fire department ambulance.

One of the places visited by defendant shortly before the fire was Allie B's. After defendant left, two of defendant's associates, Berkley Randolph and Allie B. Anding, left. They saw and went to the fire at defendant's house. Each saw defendant's wife on Crumbaughs' steps, observed that she was horribly burned and heard her say that McClain (defendant) poured gas on her and set it on fire. Mrs. Anding rode in the ambulance with the burned woman and was with her in the hospital for some time. Mrs. Anding testified that defendant's wife kept hollering that 'Mac poured the gas on her and set her afire.' The same accusing statements by defendant's wife were heard by several witnesses.

Defendant's wife died 13 days later at the hospital from the burns and complications. A pathologist, who performed an autopsy testified as to the cause of death, including his opinion that there was neglect, inadequate and improper medical attention at the hospital.

E. J. Polk, a witness for the state testified concerning conversations with defendant during the evening of August 18th and again between 6 and 8 A.M. the next morning. According to this witness defendant in the evening said he was going to kill his wife. The testimony as to the morning conversation was as follows:

'Q. Who started talking? A. McClain.

'Q. What did he say, Joe? A. He said, 'Man, I killed my wife.'

'Q. He said, 'Man, I killed my wife?' A. That's right.

'Q. What did you say? A. I said, 'You crazy.' that's what I said.

'Q. What happened then? A. So he went on to tell me how he did it. He said he run her up under the bed and he poured gas on her.

'Q. He said he poured gas on her? A. That's right.

'Q. And what happened then? A. He said he set fire to her.

'Q. What did you say? A. He said that every time she started out from under the bed, he said he start to hit her over the head with a hammer and run her back under there, and I laughed at him.'

Two witnesses testified to a conversation in the morning of August 19th between one Gilmore and defendant. Gilmore said 'McClain, do you know you burned your wife up?' Defendant answered, 'I did? Let the bitch burn. I burn the whole world up.'

Investigating authorities made an extensive search of the McClain premises and the nearby area for evidence of gasoline. They found no indication that gasoline was used.

Fire department officials secured the clothes the deceased was wearing at the time of the burning. Several people attempted to smell gas on the clothes to no avail.

A test recommended by the State Fire Marshall was conducted on the clothes. The results of these tests were negative. State and defense experts testified that this was an accurate test. The clothes, after careful preservation, were sent to the Federal Bureau of Investigation. It reported it could find no traces of combustible materials. The F. B. I. report was objected to by the State and was not allowed to go to the jury.

I. Section 769.18 Code of Iowa, I.C.A., provides procedure under which witnesses may be subpoenaed for examination by the county attorney. This is part of the investigative procedure incident to the filing of an information by a county attorney. See article of The Trial Information in Iowa Vol. XIII, Iowa Law Review 264. Pursuant to this statute and before the death of defendant's wife, four witnesses were subpoenaed for examination by the county attorney. This procedure was subsequently vigorously attacked by defendant who demanded by motion the right to cross-examine. Before a ruling on this motion defendant's wife died. The court overruled defendant's motion and ordered the case submitted to the grand jury.

Three of the witnesses previously questioned by the county attorney testified before the grand jury and the minutes of their testimony were attached to the indictment. The substance of the testimony of the fourth witness (it was of little if any importance) was filed a few days later.

Defendant claims error in refusing him the right to cross-examine the state's witnesses before trial and to take discovery depositions.

We have recently held that civil rules of discovery are not a part of our criminal procedure. State v. District Court, 253 Iowa 903, 114 N.W.2d 317.

In Iowa a defendant in a criminal case is protected far beyond the scope of discovery depositions without resort thereto. In the instant case defendant had the aid of competent and energetic counsel substantially compensated at public expense. Counsel's fee bill shows that over 103 hours were spent interviewing witnesses other than defendant. Evidentiary possibilities were apparently thoroughly explored. Regular depositions could have been taken pursuant to section 781.10. Before trial defendant had the names of the state's witnesses and the substance of their testimony. If defendant's information as to the substance of the state's evidence was inadequate a motion for a bill of particulars would have been in order. He was confronted by the witnesses against him and had the right to cross-examine. He had the aid of process to summon witnesses at public expense and availed himself of that right by calling twelve witnesses. Defendant was being held for murder but activities in his behalf were not curtailed. There was no harassment nor undue haste. There was no lack of due process. Nothing appears indicating that State v. District Court, supra, should be overruled.

II. Defendant claims error in the failure to disqualify two prospective jurors.

Venireman Irvin Fischels, on voir dire examination said he had heard Negroes where he worked talk about the case. At first he said he might have formed some opinions. He then said that he would listen to all the evidence and look at all the evidence and all the exhibits before making up his mind; that the defendant was innocent until proven guilty beyond a reasonable doubt and that he would be able to base his decision solely on what took place in the courtroom.

Venireman Donald E. Gindt on voir dire examination said he had been a police officer twenty years ago in 1942. He said he knew three people involved. He mentioned a police photographer who took and identified some pictures, a policeman who repeated defendant's nonincriminating statements and the sheriff who did not testify. He said he would give these witnesses' testimony the same weight as any other witnesses' testimony. He said that he had no prejudice toward the testimony of law enforcement officers; that he was 'on the side of the law'; that he would be able to follow the court's instructions on presumption of innocence and that an indictment should have no weight in the jury's deliberation. Being on the side of the law should be the position of every citizen. His statement expressed a belief in law enforcement and not a preconceived notion as to the guilt or innocence of the defendant.

The trial court has large discretion in ruling on...