State v. Rutledge

• Decision Date: 21 October 1907
• Citation: 135 Iowa 581,113 N.W. 461
• Parties: STATE v. RUTLEDGE.
• Court: Iowa Supreme Court

135 Iowa 581

113 N.W. 461

STATE

v.RUTLEDGE.

Supreme Court of Iowa.

Oct. 21, 1907.

Appeal from District Court, Appanoose County; F. W. Eichelberger, Judge.

Defendant was indicted for murder, and upon trial to a jury was convicted of manslaughter, and from a judgment of imprisonment for five years in the penitentiary appeals. Reversed.Howell & Elgin, for appellant.

H. W. Byers, Atty. Gen., and Chas. W. Lyon, Asst. Atty. Gen., for the State.

DEEMER, J.

Something like 161 errors are assigned, and it is manifest that in the course of an ordinary opinion we cannot consider all of them. The facts relied upon by the state are very succinctly stated in the brief filed by the Attorney General, and we copy therefrom the following: “The defendant was a man 30 years of age, married, his wife being a sister of deceased, and resided in Centerville, Appanoose county, Iowa. For some time previous to the 21st day of August, the defendant and deceased resided in the same house. Just prior to the 21st day of August, the defendant moved into other premises, and it appears from the evidence that the defendant had accused the wife of said Oliver Street of stealing some pillowslips. On the afternoon of the 21st day of August, deceased, in company with his wife, called at the home of defendant, at which time the defendant, his wife, Eva, and John Street, her brother, were just sitting down to the supper table. Oliver Street did not go into the house of the defendant, but inquired while standing at the door as to what defendant intended to do about the statement he had made concerning the stealing of certain pillowslips by Mrs. Street. The defendant replied that he was not going to do a d____ thing about it, whereupon the deceased remarked that he would go and would soon return with Jacob Myers, the party who had told him that the defendant had made the remark in question. The defendant told Oliver to ‘bring Jake Myers down, and I will face him in it.’ Before leaving, however, it appears that the defendant and deceased had a few words, and that John Street remarked that, if he (Oliver) did not go away, he would have them both arrested. It appears that, after the deceased had left the premises of defendant, the defendant went to the home of William Purkey for the purpose of getting a bucket of water, and while there remarked in the hearing of Wm. Purkey, Alfred Thomas, D. N. Thomas, Silas Thomas, Louis Purkey, and others that he would have to hurry back, as he was expecting trouble if the deceased and Jacob Myers returned, and that if they did return some one would be hauled away. After returning home, the defendant was sitting with his wife within his doorway, when the deceased returned, and he again asked defendant what he was going to do about the remark he had made concerning the stealing of the pillowslips. Defendant replied that he wasn't going to do anything about it more than he had done. Jacob Myers, mentioned above, had just vacated the premises into which Homer Rutledge had moved, and had not as yet taken away all of his chickens, and there were a few pictures also remaining, and he, together with his wife, Carrie, and son, Hepburn, came to the Rutledge home at about the time Oliver made his second call, for the purpose of getting his chickens and pictures which had been left there. One word brought on another, and the discussion became somewhat heated, whereupon John Street stepped up to Oliver and said that if this did not stop he would have them both arrested. Whereupon the deceased, Oliver Street, slapped John, and he and John became entangled in a wire clothes line and fell to the ground; Oliver Street falling on top of John. It appears that Jacob Myers attempted to pull Oliver off of John, but was not succeeding very well, when Homer Rutledge, the defendant, went over and took hold of Oliver and assisted in taking him off of John. It further appears that, when Oliver was released from John, he and Jacob Myers clinched, and that the defendant took a few steps over to his residence and was standing at or near the door, and Oliver broke loose from Jacob Myers and staggered in the direction of the house. At this time the defendant, as shown by the record, took two or three steps in the direction of the deceased, and when they came together the deceased was cut across the abdomen by a razor held in the hand of the defendant; he having put the razor in his pocket some time previous to the cutting, and shortly after the cutting dropped said razor, where it was afterwards found.”

Defendant's version of the affair is quite different. It is about as follows: For several months prior to the homicide deceased and defendant had not been on good terms. Deceased first visited defendant's house about supper time, apparently for the purpose of challenging a statement which he claimed defendant had made regarding the taking of some pillowslips by deceased's wife. Defendant denied having made the statement, but this did not satisfy the deceased, and he (deceased) abused the defendant, called him vile names, and broke up the supper. At this time he had a knife in his hands. Defendant ordered deceased off his premises, and told him to stay away. Deceased then spoke about getting Myers, to whom it is claimed defendant made the statement regarding the pillowslips and bringing him to defendant's place, and deceased then remarked that, if he (defendant) denied making the statement by Myers, he (Myers) would pound him (defendant) into the earth. Defendant said again for deceased not to come back and not to bring Myers with him, for if he did it would only end in a row. Defendant claims that when the deceased left he said: “I will go away, but I will come back, and when I do it will be for trouble.” About an hour after supper time, or about 8 o'clock, as some of the witnesses put it, deceased and Myers came back to defendant's premises and found defendant with his wife sitting on the front porch of their house. It is claimed by defendant that after deceased left about supper time defendant's wife told her brother, John Street, who boarded with defendant, that if deceased (Oliver Street) came back that he (John) should go and get the marshal and have him arrested. When deceased came back defendant's wife said to John, according to defendant's version: “John, you go and do as I told you.” John immediately said to his brother, Oliver (the deceased), when he (Oliver) appeared the second time, that he was going to have him arrested, and thereupon Oliver attacked John, knocked him down, and jumped upon him. Myers attempted to pull deceased off John, but, not being able to do so, defendant went to his rescue, and together they pulled Oliver off. Defendant claims: That he then went back to the porch of his house, and that Oliver immediately commenced a violent struggle with Myers and his wife, apparently to get loose to attack the defendant; that he finally got loose from Myers, and started for defendant with a knife in his hand; that defendant warned him to stay away, threw up his hands, and finally in self-defense struck or cut the deceased with a razor which he had in his hands, causing a wound from which deceased afterwards died. The state claims that deceased had no knife, and that he was not approaching defendant when he received the fatal wound. It further contends that when he (deceased) broke away from Myers and his wife he was not approaching defendant, but that defendant rushed out where deceased was and inflicted the fatal wound. Defendant also claimed that deceased had a knife in his hand when he was struggling with his brother John, and that when he approached the defendant he (deceased) was apparently opening his knife. Defendant also claims that deceased was a strong, robust, quarrelsome, vindictive man, and that when in trouble he would use deadly weapons, and that he had made threats against him (defendant). The trouble occurred upon defendant's premises and within a few feet of his house. Defendant filed a motion for a continuance, based upon the sickness of his wife, but this was overruled before the trial commenced. The trial lasted about three weeks, and during the trial this motion was renewed, and was again overruled. Because of the conclusion reached in the case, it is not important that we consider this ruling, save as it bears incidentally upon another matter. Almost countless errors are assigned in rulings on the admission and rejection of testimony, and to some of these we shall first give attention.

1. On cross-examination of one of the state's witnesses, who pretended to detail the whole affair, defendant's counsel asked him if he heard defendant use a single cross word to deceased or any word that sounded in a quarrelsome tone. Objection that it was a conclusion and incompetent was sustained. It should have been overruled, and the witness permitted to answer. Rosenbaum v. Levitt, 109 Iowa, 292, 80 N. W. 393;State v. McKnight, 119 Iowa, 79, 93 N. W. 63;State v. Cross, 68 Iowa, 187, 26 N. W. 62. John Street was a witness for the state, and defendant sought to show his interest in the case, his endeavor to intimidate witnesses for the state, and other matters tending to show hostility to defendant. This was not permitted, and in this there was error. State v. Eiffert, 102 Iowa, 188, 65 N. W. 309, 71 N. W. 248, 38 L. R. A. 485, 63 Am. St. Rep. 433;State v. Weems, 96 Iowa, 426, 65 N. W. 387. One Frank Taylor was called as a witness for the defendant, and defendant...