State v. Row

• Decision Date: 15 October 1890
• Citation: 46 N.W. 872,81 Iowa 138
• Parties: STATE v. ROW.
• Court: Iowa Supreme Court

81 Iowa 138

46 N.W. 872

STATE

v.ROW.

Supreme Court of Iowa.

Oct. 15, 1890.

Appeal from district court, Boone county; S. M. WEAVER, Judge.

Indictment for murder in the first degree. On the 7th day of March, 1887, the defendant was in the employ of Hurlbut, Hess & Co. and C. H. Ward. C. H. Ward owned two transfer teams, and defendant and one Campbell, employed by defendant, drove the teams for the delivery and transfer of goods of Hurlbut, Hess & Co. and C. H. Ward, in Des Moines; and on the evening of March 7, 1887, both defendant and Campbell were engaged with the teams in the delivery of goods, and on the wagon driven by Campbell were intoxicating liquors. S. C. Logan was at that time a constable, residing in Valley township, in Polk county, and was acting in the enforcement of the law against the sale of intoxicating liquors in the city of Des Moines, and had in his employ and with him on the 7th of March, 1887, one E. G. Hancher. Logan, Hancher, and others thus engaged, were by some designated as “searchers,” because searching after liquors unlawfully kept for sale. About 6 o'clock on the evening of March 7th, they found Campbell on the street in Des Moines delivering goods, including intoxicating liquors, and Logan, without a warrant, arrested him. The team was left with Hancher, and Logan and Campbell went together to the place of business of Hurlbut, Hess & Co. to inquire if a permit was held for Campbell to make such deliveries. While they were in the building, the defendant came in, and, after inquiring if Logan had a warrant for the arrest of Campbell, and being told that he had none, he said, in substance, that Logan had no right to make the arrest without a warrant, and told Campbell to “go and deliver the goods,” and gave Campbell a slight push. Some words passed between Logan and defendant with reference to defendant's interference, and Logan drew his revolver. The defendant also drew his revolver, and shot Logan twice, the first wound being mortal, and the second probably so. The cause was transferred to the district court of Boone county, and the trial resulted in a verdict of manslaughter, and a judgment of five years' imprisonment in the penitentiary, from which the defendant appeals.Cole, McVey & Clark, for appellant.

John Y. Stone, Atty. Gen., and Thos. A. Cheshire, for the State.

GRANGER, J.

1. A theory of the state on the trial in the district court was that there was a conspiracy among certain members of the corporation of Hurlbut, Hess & Co. and its employes to resist the efforts of officers or persons engaged in the enforcement of the law against the sale of liquor in so far as such efforts led to the seizure of liquors in the building, or its delivery therefrom to patrons, and that the shooting of Logan by the defendant was a result of such conspiracy. The theory of the prosecution has led to the assignment and argument of very many errors resulting from the introduction of evidence and the instructions of the court. If such a conspiracy was formed, and the killing was the result, it cannot be questioned that the acts and declarations of the members of the conspiracy in furtherance of the designs, although made in the absence of the defendant, would be admissible in evidence. 1 Greenl. Ev. § 111; State v. Nash, 7 Iowa, 347. See, also, State v. McGee, ante, 764, (decided at this term,) and cases there cited. The rule admitting such testimony invests the trial court with a large discretion. It should be satisfied prima facie of the existence of the conspiracy; and because of the particular stage of the inquiry when the rulings are to be made, or the prima facie showing determined, the question is particularly one for that court. Card v. State, (Ind.) 9 N. E. Rep. 591; State v. McGee, supra. Guided by the rule stated, we have no hesitancy in saying that the district court, in admitting the evidence, on the basis of the existence of a conspiracy, did not abuse its discretion. The record is a justification of the court's action in that respect. Besides the particular complaints as to questions and answers, there is in argument a general complaint that, because of the course pursued by the court in admitting so much of evidence without any foundation or right, the minds of the jury were affected to the prejudice of the defendant generally; and it is only because of this complaint that we notice the question of a conspiracy to the extent of determining that there was such a prima facie showing as to justify proofs of the acts and admissions of co-conspirators. The indictment was for murder in the first degree, and on the trial it was competent to admit evidence tending to establish murder of either degree, or of manslaughter. The question of a conspiracy had reference only to the crime of murder. Its bearings were alone with reference to the essentials of that crime,--premeditation and malice. To justify a verdict of manslaughter, the jury was told that the killing must have been “done as the result of some sudden, violent impulse of passion or excitement, or in the heat of a sudden quarrel, and upon reasonable provocation, without time between the provocation given and the killing for the blood to cool, or the voice of reason and judgment to be heard, and without opportunity to premeditate or reflect upon the crime and its consequences.” The verdict of the jury was for manslaughter, and hence its findings must have been that the killing was not the result of a conspiracy. If so, errors in respect to evidence on that question are without prejudice. This holding divests the record of many of its complaints, numbering 175 assignments, supported by an argument of 47 distinct divisions, in which every assignment is urged for our consideration.

2. One Bruce E. Jones was a witness for the state, and was asked what official position Logan held in Polk county; and, against objections, was allowed to answer that he acted as constable in Valley township, Polk county. It is urged that the record is the best evidence of the fact, and for that reason the testimony was incompetent. Mr. Greenleaf says that all who are proved to have acted as public officers are presumed to have been duly appointed to the office until the contrary appears; and it is not material how the question arises,--whether in a civil or a criminal case, or whether the officer is or is not a party to the record. 1 Greenl. Ev. § 92. See, also, Londegan v. Hammer, 30 Iowa, 508; 1 Phil. Ev. *642; Starkie, Ev. § 646. There was no error in the ruling of the court.

3. Jerry Grider was a witness for the state, and the defendant used one Henry Clay to impeach him by proving his general reputation for truth and veracity, and his general moral character. On cross-examination, the witness was asked what his business was, and where he resided. He said his business was whitewashing, kalsomining, and frescoing, and that he resided on Third street in Des Moines, and was boarding. To the question, “Whereabouts?” he answered: “Two weeks ago I was boarding on Third street. The week before I was up with Mr. Wise.” “Whereabouts did Mr. Wise live? Answer. Well, in Polk county. Well, you want to know it; I was in the Polk county jail at that time.” These answers were given under objections to the questions, and the point urged in support of the objections is that it was an effort to impeach a witness “by showing special facts in his history,” when only his general character could be assailed, and refers us to State v. Gordon, 3 Iowa, 410. In that case the defendant used a witness to prove his good character, and on cross-examination the state inquired into particular acts of the defendant, against objections, which this court held to be error. The question in this case is very different. It is the right of a party against whom a witness is used to know certain facts as to his history that will aid the jury to properly estimate the value of his statements; and, guided by the discretion of the trial court, inquiries may be made into such matters as will show a disposition or likelihood to favor the party for whom he is called, and to disclose his opportunities for knowing the facts as to which he has given evidence. Such inquiries may involve the associations, business, and residence of the witness, and the right of such inquiries is seldom, if ever, denied.

4. William Hall was a witness for the defendant, and testified that for nine years he had been engaged with the police force of the city. He was then asked as follows: “State what you heard, if anything, S. C. Logan say in respect to what he would do at the house of Hurlbut, Hess & Co. if he had occasion to go there.” An objection that it was incompetent, irrelevant, and immaterial was sustained, and complaint is made of the ruling. It is true there might have been an answer not open to the objections, and it is equally true that there might not. The question does not call the attention of the witness to the subject-matter of the statements by Logan, so as to enable us to know whether or not it was material. It is said in argument that the court would not allow such a statement, but the record does not show it, and it is the record that must guide us. An unobjectionable question or two would have so shaped the record as to have been a guide to us to know the relevancy of the testimony desired. Error does not affirmatively appear.

5. The defendant offered in evidence the proceedings before the coroner, including the verdict of the jury, which, on objection, was excluded. This action of the court is unquestionably right. The referecne to 1 Greenl. Ev. § 556, does not support appellant's claim. The “inquisitions” spoken of in the section are not of such a character. The only possible object of the record would be to show that the jury at that investigation found that the defendant in shooting Logan acted in self-defense. The section would make the record equally applicable on the part...