State v. Seery

• Decision Date: 09 January 1906
• Citation: 105 N.W. 511,129 Iowa 259
• Parties: STATE v. SEERY.
• Court: Iowa Supreme Court

129 Iowa 259

105 N.W. 511

STATE

v.SEERY.

Supreme Court of Iowa.

Jan. 9, 1906.

Appeal from District Court, Benton County; Obed Caswell, Judge.

Appeal from a conviction for murder in the second degree. Affirmed.Grimm, Trewin & Moffit, for appellant.

C. W. Mullan, Atty. Gen., and Lawrence De Graff, Asst. Atty. Gen., for the State.

McCLAIN, C. J.

Defendant was put on trial for murder in the first degree, alleged to have been committed by striking one Moynihan on the head with a long round piece of iron, inflicting a mortal wound, from which said Moynihan soon after died. The evidence tended to show that defendant accosted the deceased on the street in the village of Walford with some reference to a difficulty which had occurred between them the preceding day on Moynihan's farm near the village, and invited him to throw down some pieces of iron implements which he was carrying on his arm and engage in personal combat; that Moynihan declined the invitation to combat and threw one of the pieces of iron at the defendant; that defendant then exclaimed in an angry manner that he would “get something that will fix you,” and ran about 40 feet to where there was an old horse power standing near to a building occupied by defendant for the storing of some kind of agricultural implements or fixtures, and picked up a piece of iron rod about five feet long, with which he returned to Moynihan and struck him on the head, causing him to fall to the ground; that defendant carried the rod back and threw it down near where he had got it, and then returned to where Moynihan was rising, and struck him with his fist; that the parties then separated, and during the next day Moynihan died as the result of a fracture of the skull caused by the stroke from the iron rod. These are the principal facts disclosed by the evidence. Other details will be referred to in the discussion of the errors assigned by counsel.

1. A witness of the affray testified that defendant came out of a bank building near where Moynihan was standing in the street talking with witness' companion, who was sitting in a buggy, and was asked by defendant's counsel, on cross-examination, whether defendant was frequently in the habit of going to the frame building across the street near to which he subsequently picked up the iron rod with which he struck Moynihan. The object of the question, no doubt, was to rebut any inference the jury might draw that defendant came out of the bank building and started across the street with the purpose of having a fight with Moynihan, and counsel no doubt desired to argue before the jury that the defendant's intent to have a fight with Moynihan was only formed after he came from the building and started across the street toward the frame building in which he kept his farm implements. But in the first place we think it wholly immaterial whether defendant came out of the bank building for the purpose of accosting Moynihan, or for the purpose of going to his storehouse. It sufficiently appears that he did, without immediate provocation, accost Moynihan and invite him to fight. There could have been no prejudice, therefore, in excluding the testimony as to defendant's habit in going to his store building. In the second place, as it appears from the record, the question was not objected to until after the answer was given, so that, although the objection was sustained, the answer was already before the jury, and counsel did not ask to have it stricken out.

2. The same witness was cross-examined as to his testimony at the coroner's inquest, and was asked whether he testified to a certain matter on that occasion, and answered that he told what was asked of him. Counsel for defendant moved to strike out this answer, and the motion was overruled, with a remark on the part of the court that counsel could not make the witness say “Yes” or “No.” The cross-examination was continued as to what the witness said on the inquest, and we cannot see that the ruling made could have in any way prejudiced defendant's case. The defendant was not deprived of the opportunity to impeach the witness by proof of contradictory statements made before the coroner's jury.

3. Some complaint is made as to limiting the cross-examination of a witness who testifiedthat the injury inflicted on Moynihan by defendant caused his death; but, as we understand the record, the court simply refused to allow counsel to go into the question whether some particular form of surgical operation might have saved Moynihan's life, and, in the absence of evidence tending to indicate any other cause of death, we cannot see how it was at all material what might have been the result of some other method of treatment of the wound. State v. Edgerton, 100 Iowa, 63, 69 N. W. 280;State v. Wood, 112 Iowa, 411, 84 N. W. 520.

4. The sheriff who arrested defendant testified as to his conduct at and after the time of his arrest, and counsel for defendant sought on cross-examination to impeach him by showing that he had taken a great interest in securing the conviction of the defendant. It was, of course, entirely competent for counsel to thus cross-examine the witness with reference to his interest in the case and any unfriendly feeling he may have entertained against the defendant; but we are unable to discover that the court unreasonably restricted counsel in this cross-examination. It was not competent for counsel to unduly extend such cross-examination by inquiring into the details of conversations between the witness and other persons with reference to the case. The trial court seems to have thought that counsel were attempting to prove to the witness rather than to the jury that his answers with reference to not being prejudiced against the defendant were untrue, and we think the court was justified in the view which was taken of the questions asked, so far as objections were sustained, and that the rulings were not erroneous. They were certainly in no way prejudicial, for the material facts relating to the prejudice of the witness were fully developed. There must be some limit to the extent to which collateral matters can be dragged into a cross-examination, and we do not think that the court exceeded the proper exercise of its discretion.

5. A piece of iron rod was introduced in evidence over objection for defendant, which, as the testimony tends to show, was the rod with which defendant struck the deceased. Counsel for defendant contend that the...