State v. Millmeier
| Decision Date | 06 October 1897 |
| Citation | 102 Iowa 692,72 N.W. 275 |
| Parties | STATE v. MILLMEIER. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Lee county; Henry Bank, Judge.
Defendant was indicted, tried, and convicted of the crime of arson, and from the sentence imposed appeals. Reversed.Herminghausen & Herminghausen and W. W. Dodge, for appellant.
Milton Remley, Atty. Gen., and Jesse A. Miller, for the State.
Defendant is accused of having, on November 24, 1895, burned a barn belonging to one William Hoenig, but in the possession of George Millmeier, a half brother of defendant, as lessee, at the time it was destroyed. The conviction was obtained on circumstantial evidence, some of the material parts of which will be hereinafter referred to.
The court permitted a witness for the state to testify that he met defendant at a certain saloon in October before the fire, and that defendant said he was going to get even with Hoenig and his brother, George Millmeier. This witness was then asked, “What, if anything, did he say about dynamite?” To this defendant's counsel objected, but the objection was overruled. Witness then said: “He asked me to come out to his place, and asked if I understood the use of dynamite, and I told him that I did.” The objection to the question was properly overruled. Threats made by the accused against the person or property of one whose property is burned may be shown to prove the existence of malice, and connect the accused with the commission of the crime. People v. Eaton, 59 Mich. 559, 26 N. W. 702;People v. Lattimore, 86 Cal. 403, 24 Pac. 1091. For aught that appeared when the objections were interposed, counsel were inquiring as to what was said about dynamite at the time the defendant made the threat against Henry Hoenig and his brother; and it was properly admitted as a part of that conversation, if for no other reason.
Another witness was permitted to testify, over defendant's objection, that defendant said “he was going to get even with Hoenig and George Millmeier, and that he (defendant) would give him (witness) $25, and said all he (witness) had to do was to touch a match.” This evidence was clearly admissible.
On cross–examination of one of the state's witnesses, defendant offered to show that the witness had been in jail a number of times in the county, and that he had had trouble with the officers. Such evidence was clearly inadmissible, and properly rejected. This same witness was asked if he did not understand that he was to be given his liberty after testifying in the case. An objection to the question was sustained. It appears that this witness was held under bond to appear as a witness in the case, and, being unable to furnish it, was committed to jail. Under these circumstances, we doubt whether the question was a proper one; but, if it was, the ruling was without prejudice, for the witness fully explained the matter in answer to questions which were not objected to.
Another witness for the state was permitted to testify that he had noticed certain characteristics and peculiarities in the footprints of defendant, and that certain tracks leading from the railroad to the burned building, and in the direction of defendant's property, had the same characteristics and peculiarities as the tracks of defendant. Still another witness was permitted to state that there was similarity between the tracks or footprints above described and those made by defendant. The objection, as we understand it, is that these statements are merely the opinions of the witnesses, and therefore inadmissible. Identity of footprints, as well as of individuals, is, of necessity, generally a matter of opinion, and the courts almost universally hold that a witness may testify that, in his opinion, certain tracks found near a burned building were tracks made by a certain person. Crumes v. State (Tex. App.) 13 S. W. 868;State v. Ward, 61 Vt. 153, 17 Atl. 483. The witness who made the last statement testified, in effect, not only that there was a similarity in the tracks, but that they were the same, he thought. There was no error in these rulings.
A street–car conductor was permitted to testify that on the evening of January 29, 1896, he heard defendant say to a companion that “he was smart enough and sharp enough to cover up his tracks, and that, when this blowed over, he would open up the battle.” The objection to it was that it had no connection with the matter in controversy; that it occurred after the commission of the crime, and was immaterial and irrelevant. The argument in support of the objection is somewhat broader, in that it claims that this was but an extract from a conversation, the remainder of which the witness did not hear. There is no foundation in the record for this latter claim. With reference to the objection which was in fact made, it appears to us that the evidence was improperly admitted. The witness did not pretend to know what the conversation was about. He gave but this one sentence, and we are asked to infer or hold that the jury in the trial below was authorized to infer that it related to the burning of the building. There is absolutely nothing to show that this conversation related to the burning of the barn, or that the threat contained in it had reference either to the owner or to the occupant of the building. It may as well have referred to any other circumstance or to any other trouble. Before allowing it to be received in evidence, the court should have required some kind of showing that it related either to the offense charged or to the persons whose property was burned. The evidence was clearly irrelevant and highly prejudicial, and should have been rejected.
2. Counsel for the state, in his closing address to the jury, said: “Defendant is not only charged of a crime, but he is guilty of it.” He also said: Neither of these statements is sufficient to call for a new trial. State v. Beasley, 84 Iowa, 83, 50 N. W. 570;State v. Cater (Iowa) 69 N. W. 880;State v. Toombs, 79 Iowa, 741, 45 N. W. 300.
3. The only proof of the corpus delicti is that a barn belonging to Hoenig, and used by George Millmeier, was burned between 11 and 12 o'clock in the evening of November 24, 1895; that defendant, during a period covering two or more years, had made various threats against the owner and occupant; that, about a week after the fire, footprints similar in size and shape to his were found at or...
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...... witness, wherefore questions respecting mere accusations are. properly excluded. People v. Crapo, 76 N.Y. 288;. Ryan v. People, 79 N.Y. 593; Van Bokkelen v. Berdell, 130 N.Y. 141, 29 N.E. 254; People v. Hamblin, 68 Cal. 101, 8 P. 687; State v. Millmeier, 102 Iowa, 692, 72 N.W. 275; Bates v. State, 60 Ark. 450, 30 S.W. 890; Roop v. State, . 58 N. J. Law, 479, 34 A. 749; State v. Kent, 5 N. D. . 516 (text 557), 67 N.W. 1063. In Missouri, the exclusion of. such questions is reversible error ( State v. Taylor, 118 Mo. 153, 24 S.W. 449), ......
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