State v. Moelchen

• Decision Date: 08 April 1880
• Citation: 5 N.W. 186,53 Iowa 310
• Parties: THE STATE OF IOWA v. MOELCHEN.
• Court: Iowa Supreme Court

53 Iowa 310

5 N.W. 186

THE STATE OF IOWA

v.MOELCHEN.

Supreme Court of Iowa.

Filed April 8, 1880.

Appeal from Dubuque district court.

The defendant was indicted, tried, convicted, and sentenced for the murder of Jacob Odenthal, and he appeals to this court for a reversal of the judgment against him. The facts of the case appear in the opinion.McCeney & O'Donnell, for appellant.

J. F. McJunkin, Attorney General, and T. S. Wilson, for the state.

ROTHROCK, J.

1. Jacob Odenthal was the uncle of the defendant. On the morning of the second of July, 1878, the dead body of Odenthal was found lying in a road about one mile and a half from his residence. His horse, with a saddle on, was found some distance away. There were wounds upon his head sufficient to have produced instant death. His coat was buttoned and the right arm was out of the sleeve. The right stirrup strap had the appearance of having been cut from the saddle, and it, with the stirrup, was hanging upon the left foot of the deceased, and wrapped about the heel.

There was evidence tending to show that the body had been dragged some distance. There were shoe tracks found near the body, and in the line where it appeared the body had been dragged. The defendant is a young man, and came to this country from Germany in January, 1878, at the invitation of Odenthal, to live with him. They lived alone in Odenthal's house, excepting that for a part of the time they had a housekeeper named Douglas. Odenthal owned a small farm and some personal property. In March previous to his death he made a conveyance of his farm to the defendant, and it was deposited with a third person, to be delivered to the defendant at Odenthal's death.

It was claimed by the state upon the trial that defendant murdered the deceased in the house where they lived, and that upon the night before the body was found he placed it upon a horse, and walked alongside the horse through a gate and field, leaving the track of his shoes aside the horse's tracks, and that he thus walked and kept the body in position upon the horse, to near the place where it was found, and that he there left the body, the horse, saddle, etc., to create the impression that the deceased was killed accidentally by falling from his horse, or otherwise.

The claim made by the defendant was that the deceased took his horse, on the evening before his dead body was found, and rode away after dark, and that was the last he saw of him alive.

There are many other circumstances found in the evidence which bear upon the issue––such as the finding of an ax upon the premises, stained with blood, and what appeared to be bloody spots upon the wall of a room in the house, and upon certain clothing, the appearance of something having been dragged from the house, etc.––but we have given sufficient to enable the reader to understand the questions which we are required, upon an examination of the record, to determine.

Andrew Bahl, a witness for the state, was one among the first persons who was present when the body of the deceased was found. He testified that certain shoe–tracks were found near the body, and in the line where there were indications that the body had been dragged; that the tracks had marks of coarse nails in them; that defendant had coarse nails on each side of his shoes. A short time after the body was found the defendant was arrested and taken to where it lay. The witness proceeded with his testimony as follows: “I saw defendant's tracks made when brought by the constable; was same track, in my opinion, as one made at body.” Interrogatory. “In appearance?” Answer. “In appearance made by the same shoe; whether it was made by the same person I can't tell.” This testimony was objected to, because it was the opinion of the witness upon a question where such opinion was not admissible. The witness may have been unfortunate in the use of the word opinion; but taking what follows it is clear that he intended in all that he said upon the subject to say just what he did say, in answer to the interrogatory that “in appearance the track was made by the same shoe.” He evidently intended to say that in his judgment the tracks appeared to have been alike, or made by the same shoe. It is always allowable for a witness to describe the appearance of an object or thing, when material, as that a person appeared excited, or amused, or intoxicated, or the like; and yet, in a certain sense, this is an opinion; but it is not an opinion so distinct from a fact as to be inadmissible.

2. The same witness was asked this question: “Do you know what had been defendant's business previous to coming here?” The answer was, “Defendant told me he had been acting as agent, and was in the last Franco–Prussian war, a soldier.” Objection was made to this evidence upon the ground that it was immaterial. It is claimed in argument that the object of the prosecution was to show that the defendant was trained to scenes of blood and carnage, and to argue to the jury that he was thus prepared to take the life of his uncle, and that such argument was made. It would not have been error if the court had excluded this evidence, and yet, in all trials of this character, it is not unusual to inquire as to the previous occupation of the defendant, and we cannot say that it is erroneous. That he was a soldier of his country was certainly not to his discredit, and would not tend to show that he was guilty of the crime charged. The record does not show that an appeal was made to the jury against defendant on account of his previous occupation. If such was the fact, the court, no doubt, interfered, and put a stop to it as conduct not only highly unprofessional, but as an unnecessary waste of the time of the court and jury.

3. A number of objections were made to interrogatories propounded by the prosecution to witnesses because they were leading. This question was asked one of the witnesses: “State to the jury whether you could notice, distinctly or otherwise, the nails in tracks––the points of the nails. Answer.Yes.” This question was not objectionable. The witness had testified that there “were nails printed into the mud around the outside of the soles.” Taken into consideration with what preceded the question it was not leading; it merely asked whether the impression of the tracks was “distinct or otherwise.” We have examined the other objections made to leading questions, and, without setting them out in detail, will say that we find nothing therein which seems to us to be prejudicial to the defendant, nor an abuse of the discretion of the court. The permission to ask leading questions is a matter resting in the sound discretion of the court, which cannot be urged as error unless it be shown that there was an abuse of such discretion. State v. Bodeker, 34 Iowa, 520; 1 Greenleaf on Evidence, § 435.

4. Objections were made to the refusal of the court to allow the defendant to prove his statements and declarations made at the place where the body was found, and to allow him to show that the tracks found in the field in connection with the tracks of a horse were found by reason of information given by defendant. The reason for the exclusion of this evidence is...