State v. Middleham

• Decision Date: 05 December 1883
• Citation: 17 N.W. 446,62 Iowa 150
• Parties: STATE v. MIDDLEHAM
• Court: Iowa Supreme Court

17 N.W. 446

62 Iowa 150

STATE v. MIDDLEHAM

Supreme Court of Iowa, Des Moines

December 5, 1883

Appeal from Jasper District Court.

THE defendant was indicted and tried for murder in the first degree, and convicted of manslaughter. He appeals.

REVERSED.

Martin Murphy & Lynch, Bolton & McCoy and H. S. Winslow, for appellant.

Smith McPherson, Attorney-general, for the State.

OPINION

DAY CH. J.

I. The evidence shows that the defendant killed his step-son, William Davis, with a knife, in the Central House a hotel kept by the defendant. One Penlan was introduced as a witness, and testified as follows: "John Carr arrested defendant that day in the Central House, in what was called the bar-room. I went in right after him." He was then asked the following question: "State what, if anything, was said by Mrs. Middleham there, in the presence and hearing of the defendant, concerning the manner in which the homicide was committed and the connection of the defendant with the homicide?" This question was objected to as incompetent, immaterial and hearsay, and as calling for the declarations of a party not a competent witness against the defendant. The objection was overruled, and the witness answered: "Soon after I went into the house, Mrs. Middleham threw up her hands and says, 'My God My God he has killed my boy He struck him right over my shoulder. See the blood of my boy on my sleeve. Take him away; I never want to see him.'" The admitting of this evidence is assigned as error. It is insisted that it is incumbent to establish, not only presence and hearing, but also understanding. In support of this objection appellant cites Lanergan v. People, 39 N.Y. 39. The case is not in point, as it was shown in that case that the defendant was asleep, "sound and solid," when the declaration which was admitted was made. The witness in this case was asked what was said in the "presence and hearing" of defendant. It was for the jury to determine from all the circumstances whether he heard and understood what was said. It is further objected that the declaration was a communication by the wife to the husband, and so not admissible. Appellant cites and relies upon Campbell v. Chace, 12 R.I. 333. That case simply holds that communications between husband and wife cannot be disclosed, although made in the presence of others. The declaration admitted in this case was not such a communication. There was no error in its admission.

II. One Dr. McAllister was introduced as a witness, and described the wound upon deceased as follows: "There was one cut in the neck. * * * * The knife had passed in and struck the jaw bone a little below the angle, and cut the artery off there, and passed into the throat, I think fully four inches and one-half. In my opinion that was a death wound. The knife described a half circle, and in an oblique direction from above downwards and forwards, extending an inch and one-half, or about that; then the knife was apparently drawn out. It cut on the external surface nearly an inch and one-half in extent. Internally it was more extensive, laying the wind pipe open an inch and one-half, so that when he breathed he made that noise that animals will when stuck by a butcher." A knife was produced in court, which was conceded to be the knife with which the wound causing the death of deceased was inflicted. The witness was then asked the following question: "Will you give your opinion as to the manner in which the knife was handled to inflict such a wound as you found in the neck of the deceased, provided it was inflicted with that knife?" This question was objected to as incompetent, not the subject of medical expert testimony, hearsay, and calling for the opinion of the witness. The objection was overruled, and the witness answered: "As near as I can tell, it was about as a butcher would stick an animal he proposed to kill." This ruling of the court is assigned as error. The appellant relies upon Cook v. The State, 4 Zab. 843; People v. Bodine, 1 Denio 281; and Kennedy v. The People, 39 N.Y. 245. Even if this evidence was not strictly admissible as expert testimony, we are unable to see in what manner the defendant could have been prejudiced by it. The evidence shows, without any conflict whatever, that the defendant killed the deceased with a knife. The evidence in question would tend simply to establish the grade of the offense as murder, either in the first or second degree, by showing that the act was done with malice and deliberation. But as the jury found the defendant guilty of manslaughter only, he could not have been prejudicially affected by this testimony.

III. The state having rested, the defendant moved the court to require the district attorney to present the evidence of certain witnesses examined before the grand jury. The court overruled the motion as to the witnesses, Drake and Charles Davis, and sustained it as to the witness Christy Mather. It is conceded that Drake was not before the grand jury, but it is claimed that Davis was. We cannot determine that he was from the record. Appellant insists that the rule is that the prosecutor must call all witnesses present at the transaction, before the prisoner is put to his defense. Appellant relies upon Maher v. The People, 10 Mich. 212; and Hund v. The People, 25 Ill. 405. Hund v. The People is a mis-citation, and we have not been able to find it. ^[*] The case of Maher v. The People does not sustain the position. In that case it was simply said that, when it appears that a fact has been designedly omitted by the prosecution from the series constituting the res gestae, or entire transaction, it would be the duty of the court to require the prosecutor to show the transaction as a whole. This statement of the law does not require the production of all the witnesses present, but simply that proof of the whole transaction shall be introduced; and even this statement is dictum, as the evidence under consideration was offered by the defendant, and was rejected. If an offense should be committed in the presence of one hundred persons, it surely would not be incumbent upon the prosecution to call all of them before the defendant can be put upon his defense. We discover no error in this ruling.

IV. The defendant introduced one Charles Feree, who testified that he had known deceased all his life time. The witness was then asked the following...