State v. Nowells
| Decision Date | 11 December 1906 |
| Citation | 109 N.W. 1016,135 Iowa 53 |
| Parties | THE STATE OF IOWA, Appellee, v. ELMER NOWELLS, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED, MONDAY, JUNE 10, 1907.
Appeal from Pottawattamie District Court.-- HON. A. B. THORNELL Judge.
THE defendant was convicted of the crime of murder in the second degree, and appeals.-- Affirmed.
Affirmed.
Turner & Cullison, for appellent.
Chas W. Mullan, Attorney-General, and L. De Graff, Assistant Attorney-General, for the State.
The defendant was convicted upon an indictment charging him with the murder of Le Roy Addison, who died of a pistol shot wound on or about September 15, 1905. It is not seriously contended, nor could it well be argued, that the verdict of guilty is without sufficient support in the evidence. We shall not attempt to rehearse the testimony in great detail. In a general way it may be said to have been shown with more or less certainty that appellant and the deceased were old acquaintances, and, prior to their meeting at the time of the alleged murder, had been on friendly terms. Both were addicted to the excessive use of intoxicants. On the morning of the day before the death of Addison they chanced to meet at the town of Oakland, Iowa and together took the train to Avoca; the deceased claiming to be on his way to Shelby, and the appellant on his way to Atlantic. At Avoca they seem to have abandoned the idea of going farther at that time, and began making the rounds of the drinking saloons at that place -- both becoming intoxicated. That night they slept in a box car standing at the railway station, and, on the next morning, resumed their carousal. At about two o'clock in the afternoon both were drunk. In a saloon, in the presence of several persons, deceased proposed to a witness that they play a game of craps, but, the witness declining the invitation, appellant said he would go and "shoot a few craps" with him. They went out and made their way to a coal shed at the side of the railway track. The shed was open at the end, and they were seen to sit down by the posts which supported the roof of the structure. One witness swears to seeing them engaged in apparently angry conversation with dice scattered on the floor or ground before them. About the same time, or immediately afterward, another witness saw appellant get up and go back into the shed out of sight. In a very short time after this incident the same witness who was at work in a building near at hand heard a pistol shot, and, going to the window, saw deceased stagger from the shed, and heard him call for a doctor. Hastily raising an alarm by telephone, the witness went to the relief of the injured man, and saw appellant going away in the opposite direction. The witness called to him to come back, and, upon the call being repeated, he returned. Addison was removed to a physician's office, but the hemorrhage from his wound was so excessive that he died in a short time. The bullet had entered his body immediately above the left collar bone at the median line, and, passing down and back, found lodgment under the first rib at the right side. After Addison had been taken to the physician's office, appellant said to bystanders that he (Addison) had shot himself, and offered to go and find the weapon with which the act was done; and repairing to the shed a revolver was found on the floor near the point where the deceased was last seen before the shooting. Appellant concedes that the revolver was his own, but claims to have lent it to the deceased on the day before, although one witness testifies to seeing appellant have it just before the parties left the saloon to go to the coal shed. These circumstances, with others we will not stop to collate, strengthened by a dying statement of the deceased which was admitted in evidence, make up the State's case. It is true that, upon many of the points, we have noted the appellant, as a witness, takes issue with the witnesses for the State, and in some matters he is corroborated by other witnesses, but the truth as to these disputed propositions was a matter for the consideration of the jury.
The first point urged upon our attention is the alleged error of the trial court in admitting in evidence the dying declaration to which reference has been made. The objection, if we understand counsel, is grounded upon the thought that there was no sufficient showing that the deceased knew the seriousness of his condition, or spoke under a realizing sense of impending death. The record will not support the contention. The wounded man was in fact dying, and the evidence was such that the court and jury could well believe he realized that solemn fact. There is evidence that when appellant was called back to the place where deceased had fallen, and before the physician arrived, deceased pointed him out as the man who shot him. After this he seems to have become reticent on the subject, and, while being carried to the physician's office, and, after arriving there, he refused to answer questions as to the author of his hurt, saying he would not tell unless the doctor told him he was going to die. Finally, being told that he probably would die, and after saying to the bystanders, "Boys, I am going," he made the statement that appellant shot him over a game of craps. Having made this statement, he said, "Tell mother goodbye," and immediately became convulsed in the final death struggle. We may concede all which counsel claim as to the propriety of holding the State to a clear and satisfactory showing, that the alleged dying statement was made under the solemnity of a conviction of impending dissolution, and still we think the proof in this case fills the full measure of the rule. That the dying man's mind was clear is demonstrated by his caution about making the statement until almost his last breath, and the fact that he was beyond hope of recovery must have been as clear to him as to those who were ministering to his needs. We have had quite frequent occasion to consider the law relating to dying statements, and the ruling of the trial court was in harmony with the rules to which we have given adherence. See State v. Phillips, 118 Iowa 660, 92 N.W. 876, and cases there cited.
Complaint is also made that the jury were not clearly instructed as to the nature and effect of alleged dying statements. It is said the court should have told the jury, in substance, that, in order to give any weight to such testimony, it must be found that the wounded man was in fact in articulo mortis, and that he himself realized his dying condition. In our judgment the instructions given by the court on its own motion embodied the rule substantially as counsel states it. It is true that the court does not adopt the same language used by counsel, nor is the rule, as given, emphasized by being also negatively stated; but in this there was no reversible error. If the instruction, as given, is open to criticism in any respect, it is that it lacks somewhat in explicitness and definiteness of statement, but it is certainly correct as far as it goes, and there was no request for any modification of the charge.
Error is also assigned upon the admission of testimony as to certain experiments made by witnesses for the State. It appears that on two occasions after the alleged homicide witnesses had taken a piece of the shirt worn by the deceased when he was killed, and fired shots through it from the appellant's revolver at a distance of six to twelve inches, for the purpose of noting the resulting powder marks or burns, if any. On one of these occasions the cloth at the time of the experimental shot was stretched over a piece of fresh pork. These exhibits were allowed to go to the jury. On general principles, we should be better satisfied if the use of the pork in evidence had not been allowed by the trial court; but, under the circumstances here shown, we are unable to see how it could have prejudiced the appellant. The theory of the appellant, as well as of the State, was that Addison died from a shot fired from appellant's revolver, and the exhibition of the pork could not have added to, or detracted from, the weight of that conceded fact. As far as the record shows, no claim was made by the State that the exhibition of the pork was of any value in determining whether the wound of which the deceased died was received at the hands of the appellant, or was self-incited; and we cannot presume that the jury could have been misled thereby to the appellant's injury. Stockwell v. Railroad Co., 43 Iowa 470.
As to the cloth through which the shots were fired, and the testimony as to the manner in which the experiments were made, we find no error in their admission. If the deceased committed suicide, it was physically impossible that, in firing the shot, the muzzle of the revolver should have been held more than a few inches from the point where the bullet entered his body, and we would naturally expect to find powder burns, or at least powder stains, upon his shirt at that point. The testimony tends to show that there were no burns upon the shirt from the shot which inflicted the fatal wound, and that the stains, if any, were slight.
Now the fact as to the distance at which a gun or revolver shot...
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