State v. Tippet

• Decision Date: 21 May 1895
• Citation: 63 N.W. 445,94 Iowa 646
• Parties: STATE v. TIPPET.
• Court: Iowa Supreme Court

94 Iowa 646

63 N.W. 445

STATE

v.TIPPET.

Supreme Court of Iowa.

May 21, 1895.

Appeal from district court, Mahaska county; A. R. Dewey, Judge.

The defendant was indicted for the crime of murder in the first degree. He was convicted of the crime of manslaughter, and sentenced to a term of six months in the penitentiary, from which he appeals. Affirmed.Bolton & McCoy, J. C. Williams, and W. S. Kenworthy, for appellant.

Milton Remley, Atty. Gen., Byron W. Preston, and Thomas A. Cheshire, for the State.

KINNE, J.

1. It is insisted that the verdict is not supported by the evidence. The facts, in brief, as disclosed by this record, are that the deceased and defendant were in a saloon at or near the town of Carbonado, in Mahaska county, Iowa. Both these parties, and others, had been invited by O'Brien, the saloon keeper, to take a drink with him, and were standing near the bar while O'Brien was preparing to furnish the drinks. O'Brien had a revolver, and, as he passed behind the bar, he laid it upon an ice chest. Defendant picked it up, and, while it was in his hands, it was discharged, and the ball entered the neck of the deceased, causing a wound from which he died. Defendant claims he did not fire the fatal shot. He says he does not know who did. He did not see any smoke, nor did he see any one have a revolver, though he did see deceased when he fell. It appears that, when defendant was charged with the crime by decedent's brother, he did not deny it. To another brother of deceased he said, “For God's sake, not to tell his [defendant's] mother about it.” After the shooting, defendant tried to stop the flow of blood from the wound. Deceased told his brother who shot him. One Bolden (a colored man) was in the saloon when the shooting took place. He testified that O'Brien laid his revolver on the ice box; that defendant picked it up, and held it towards deceased, and asked him what he would have to drink; deceased replied that he would take gin, and then the report of the revolver was heard; that defendant held the revolver in his hand when it went off; that deceased threw up his hands, and fell backward when shot; that that was the only shot fired at that time. The bullet was taken from deceased's body, and introduced in evidence. Defendant offered evidence tending to show previous good reputation for peaceableness and quietness in the community in which he lived. Defendant was a witness in his own behalf, and was examined and cross-examined at great length. Except as to the fact of having taken O'Brien's revolver, and that he had shot the deceased, defendant's testimony was not materially different from that of the colored man. It appears also from his evidence that, some time prior to the shooting of Scott, all of the parties had been firing the revolver, and that it was out of repair. Sometimes it would go off, and at other times it would not; that defendant and O'Brien tried to fix it. Many other facts were elicited, and from all of them it seems reasonably certain that the facts touching the shooting as detailed by the colored man are correct. The location of the wound, its appearance as indicating the direction from which the ball came, the situation of defendant, and other facts, all point to the unmistakable conclusion that defendant fired the fatal shot. The theory of the defense seems to be that the shooting was accidental. As we have said, it seems clear that defendant shot the deceased with O'Brien's revolver. He knew the revolver was out of order. He knew it was likely to go off, and if, under such circumstances, he pointed it at deceased, and discharged it, even accidentally, and shot deceased, from the effect of which he died, defendant's act would be criminal, even though he may not have intended to discharge the weapon. It is said deceased and defendant were friends. That fact, if it be a fact, is not material, in view of the verdict of manslaughter. We need not dwell upon the facts. We think the verdict was fully warranted by the evidence.

2. Error is assigned on the ruling of the court permitting Dr. Parry to give his opinion as to the cause of Scott's death. Dr. Parry attended Scott the evening of the shooting, and after he was shot. He assisted in conducting the post mortem examination of the body, and was properly permitted to give his opinion as to the cause of death. State v. Porter, 34 Iowa, 131. Furthermore, there is no claim in this record that Scott came to his death in any other manner or from any other cause than this pistol-shot wound.

3. It is said that the court erred in sustaining certain objections to questions propounded to the witness Lizzie Myers. It seems that the state's witness Bolden had told McCoy, one of the defendant's counsel, in his office, in presence of Lizzie Myers, that he thought the shooting was accidental; and Bolden so admitted upon the witness stand, but claimed he said he thought it was an accident, until somebody said, “The damned nigger had shot him.” Defendant sought to show by the witness Myers that nothing was said by Bolden about the “damned nigger” having shot deceased; and the court ruled it out as incompetent, immaterial, and irrelevant. Now, we do not see how it was material as to just when Bolden ceased to think the shooting was accidental. The witness had admitted upon the stand that he had thought the shooting accidental. There was no error in the ruling.

4. The point is stated, but not argued, that there was no evidence identifying the bullet that was taken from deceased's neck, and hence it was error to admit it. Dr. Muir testified that he saw the bullet that was taken from the wound; that he took it out himself, and put it in his pocket; that he had it in his possession when he went before the grand jury to testify; and that he left it with the grand jury. He identified the bullet offered in evidence as being the same one he took from Scott's body, and said its condition was the same except the identification marks. There was no error in admitting the bullet.

5. One Seaton testified for defendant as to his reputation for morality and peaceableness. On cross-examination he was asked: “You didn't hear about his getting into a fight at Rose Hill, and cleaning out a boarding house, a whole house-full?” “You didn't hear anything about him threatening to knife and shoot a man at What Cheer?” Both questions were answered in the negative. Witness Gordon, who also testified as to defendant's good reputation for peaceableness, was asked in cross-examination, “He never drank anything either, did he?” and answered that he had never seen him drink. These questions were properly objected to, and the objections overruled. Counsel for defendant contend that asking such questions is such misconduct on part of the prosecutor as entitles the defendant to a new trial. It may be conceded that the questions were improper, as calling for particular instances of difficulties had with other persons; but, in view of the fact that no improper testimony was in fact given, can the fact that improper questions were asked be said to have prejudiced the defendant? In State v. Gordon, 3 Iowa, 415, when such questions were asked, but no answers set out in the record, but the record did show that the “state was permitted to go into particular instances of difficulties by the person with others,” it was held that it sufficiently appeared that the witness “testified of and detailed matters which ought not to be inquired of, and ought not to be considered by the jury in finding their verdict.” In State v. Sterrett, 71 Iowa, 387, 32 N. W. 387, evidence was introduced “tending to prove that ...