State v. Walker

• Decision Date: 12 July 1904
• Parties: STATE v. WALKER.
• Court: Iowa Supreme Court

124 Iowa 414

100 N.W. 354

STATE

v.WALKER.

Supreme Court of Iowa.

July 12, 1904.

Appeal from District Court, Polk County; Josiah Given, Judge.

Defendant was indicted for the crime of murder in the first degree, and on trial by a jury he was convicted of manslaughter, and sentenced to imprisonment in the penitentiary for the term of eight years. From this sentence he appeals. Reversed.Charles Mackenzie, J. B. Rush, and John T. Mulvaney, for appellant.

Charles Mullan, Atty. Gen., Jesse A. Miller, and Robert O. Brennan, for the State.

McCLAIN, J.

About 10 o'clock in the evening of August 5, 1902, one Isaac Finkelstein was found lying on the north side of East Walnut street, in the mouth of the alley between East Sixth and Seventh streets, in Des Moines, with one side of his head mashed, apparently by a club of some kind, and he died within a few minutes after he was found. One Harris Levich, and the defendant, John Walker, the latter being a colored man, were indicted for the crime of murder in causing the death of Finkelstein. Levich was tried first and acquitted. Subsequently, when this defendant was tried, the prosecution, after proving the corpus delicti, and introducing evidence tending to show that the mortal wound on the head of the deceased had probably been inflicted with a singletree (found lying in the alley near the body of Finkelstein) that had apparently been taken from a wagon belonging to Harris Levich, which was discovered in an alley about a block away, and showing the facts as to the arrest of the defendant Walker, the next morning in West Des Moines, and before any evidence whatever had been introduced tending directly to connect defendant with the commission of the crime, sought to show by witnesses, prior to the time of the commission of the crime, that Levich had made declarations, not in the presence of Walker, indicating the employment by him of Walker to “do up” Finkelstein. This testimony was objected to, on the ground that, in the absence of evidence tending to show conspiracy between Levich and the defendant, the declarations of Levich were not admissible as against the defendant. The following colloquy was then had, as appears from the record, between the trial judge and the attorney for the prosecution: “State: We claim two grounds upon which we have a right to declarations of Levich in the absence of Walker: First, that this was just a short time preceding the murder; second, they having been much together, and having been seen together at so short a time before the fatal blow was struck. Court: Will the evidence sought to be elicited here have any tendency to prove conspiracy itself? State: We think it would, and that is the object and purpose of this evidence. Court: Then we need not trouble much about other rules. I think the rule is this: that where the prosecution relies, in part at least, upon conspiracy, before we can charge either party with the declarations of the other, the state may be required to first give in evidence some testimony of the conspiracy, or it may be permitted to introduce the evidence, and it will be left or taken from the jury according as they follow it with evidence of some conspiracy. Whether there be evidence to go to the jury may be a question. But if the declaration itself preceded the act, and tends to establish conspiracy, then it is admissible, regardless of either of the rules. Therefore the objection will be overruled.” The prosecution was then allowed, over the defendant's objections, to show declarations of Levich tending to establish the fact that Levich had arranged with the defendant to inflict death or severe bodily injury upon Finkelstein, and that Levich made this arrangement in a spirit of revenge, by reason of real or fancied injuries done to him and his business by Finkelstein. It seems from the colloquy above set out that the prosecution was contending that the fact that such a declaration was made by Levich just a short time preceding the commission of the crime would render the declaration admissible, and that the trial judge seemed to entertain the view that the fact of conspiracy, which must be established to make the declarations of Levich admissible, might be taken as established by such declaration alone, although no other evidence of conspiracy should be introduced. Perhaps the position taken by the prosecution and the trial judge are not accurately represented in the colloquy. However this may be, it is plain that unless the declarations were part of the res gestæ they were not admissible as independent evidence, and could not be considered at all without there was some evidence, apart from the declarations themselves, tending to show a conspiracy previously entered into between Levich and defendant with reference to the commission of the crime.

The first contention on behalf of defendant is that the court should have required the conspiracy to be proven by independent evidence before receiving the declarations. With reference to this question, the contention for the state is that it is within the discretion of the trial court to admit proof of acts and declarations of joint conspirators even before a prima facie case of conspiracy has been made, provided the state promises in the further progress of the trial to introduce such prima facie evidence; and such a rule seems to have been announced in broad terms in State v. Grant, 86 Iowa, 216, 53 N. W. 120, and State v. Mushrush, 97 Iowa, 44, 66 N. W. 746. We have no occasion to question the correctness of this general proposition, but in the first place it does not appear from the record that in this case the state made any such promise. So far as we can gather, the assertion on the part of the prosecution was that the declarations of Levich which were to be proven would tend to show a conspiracy. This clearly would not be enough, for, as already stated, and as the rule unquestionably is, the evidence tending to show a conspiracy must be outside of and in addition to the declarations of the co–conspirators whose declarations are sought to be introduced. The safer rule, undoubtedly, is to require the proof of conspiracy to be made before the declarations are allowed to be shown. With reference to this question, we quote the following pertinent language: “Sometimes, for the sake of convenience, the acts or declarations of one [conspirator] are admitted in evidence before proof of the conspiracy has been given, the prosecutor undertaking to furnish such proof in the subsequent stage of the cause. But this method of proceeding rests in the discretion of the judge, and in seditions or other general conspiracies is seldom permitted, except under particular and urgent circumstances. If it were, the jury might be misled to infer the fact of the conspiracy from the declarations of strangers.” 2 Taylor, Evidence (Chamberlayne's Ed.) § 591. And see Abbott, Trial Evidence (2d Ed.) 238. We think it would have been better in this case for the trial court to insist that some evidence of a conspiracy be introduced by the prosecution before allowing the declarations of Levich to be shown. Those declarations were so likely to prejudicially affect the minds of the jury with reference to the defendant that no subsequent acts of the court in striking them out and directing the jury not to consider them could free the jurors' minds of the prejudicial result, should it subsequently appear that there was no evidence whatever, aside from the declaration of Levich himself, that defendant had entered into an arrangement with Levich to do violence to Finkelstein. We would not reverse the case on this ground alone, had there been independent evidence of a conspiracy such as to make out a prima facie case, but in view of a new trial we feel justified in suggesting that it will be difficult to adequately protect the right of defendant to be tried...