State v. Walker
| Decision Date | 05 March 1907 |
| Citation | 110 N.W. 925,133 Iowa 489 |
| Parties | STATE OF IOWA v. JOHN WALKER, Appellant |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.-- HON. A. H. MCVEY, Judge.
THE defendant was indicted jointly with one Harris Levich for the crime of murder in the first degree, and, on trial by a jury he was convicted of manslaughter in February, 1903. The case was appealed to this court, where it was reversed, the opinion on said appeal being reported in 124 Iowa 414. On a retrial of the case he was again convicted of manslaughter and sentenced to the penitentiary. He appeals.-- Affirmed.
Affirmed.
McHenry Mulvaney & Jones and McKenzie & Franklin, for appellant.
H. W Byers, Attorney-General, and Chas. W. Lyon, Assistant Attorney-General, for the State.
The appellant assigns some twenty-five errors on which he asks a reversal of this judgment. It is manifest that the proper limits of the opinion will preclude an extended discussion of each of the errors assigned, and we shall, therefore, direct our attention principally to the questions of grave moment which are presented by the appeal. As we have seen, the indictment was a joint one charging the defendants named therein with murder in the first degree. The defendant having been previously tried on the same indictment and found guilty only of manslaughter, he was acquitted of the graver charge.
Upon the present trial the county attorney read the indictment to the jury, and, after reading the same, he stated that the "defendant is only on trial for the offense of manslaughter, an included offense in the crime of murder in the first degree." The county attorney, in the same connection, further said to the jury that the defendant plead not guilty, and that the plea put in issue the question as to whether or not he was guilty of manslaughter.
The appellant urges that the county attorney should not have been permitted to read the indictment to the jury, and bases his claim upon the proposition that, where the defendant is acquitted of a higher offense by conviction of a lower included offense, the graver charge is entirely eliminated from the proceedings. While it is true that a defendant, who has been tried on an indictment charging murder in the first degree and convicted of manslaughter only, cannot be again tried for the graver offense, it is also true that the indictment upon which the second trial is had is, and must be, the same as that on which he was first tried, and that it is entirely proper and in fact it is a requirement of the statute (Code, section 5372) that the indictment upon which the defendant is tried shall be read to the jury and his plea thereto stated to the jury. The indictment charging murder in the first degree, and the former acquittal of the defendant of that crime, necessarily called for a statement on the part of the court or of the county attorney that, while the indictment charged the graver crime, the defendant could only be tried on the included offense of manslaughter, and there was no error in permitting the county attorney to read the indictment to the jury, or in the statements made by him to which we have already referred.
In another part of his opening statement, the county attorney said to the jury that, in his judgment, the evidence would show that the defendant was guilty of murder in the first degree, and this the appellant complains of. The statute provides that the county attorney may briefly state the evidence by which he expects to sustain the indictment, and we see no impropriety in his stating in that connection and, in connection with the fact that the defendant could only be convicted of manslaughter, his opinion that the evidence will sustain the graver charge.
The evidence tends to show that Isaac Finkelstein, the murdered man, was killed by blows on the head, inflicted by a club of some kind, and, very soon after his body was found, a singletree was found near his body with blood on one end thereof, and there was also evidence tending to show that this singletree had been taken from a wagon belonging to Harris Levich, which wagon was kept in Levich's premises a block or so distant from the scene of the homicide. The evidence also tends to show that very shortly prior to the murder, the defendant was seen coming from the direction where this wagon was kept, and going toward the scene of the crime with something in his hand bearing the general appearance of the singletree which was introduced in the evidence. The defendant made no objection to the introduction in evidence of the singletree, and the State was then permitted to prove that it was the property of Harris Levich. There was no error in the ruling; it was entirely competent to show the ownership thereof, and the place from which it was taken, for the purpose of showing the connection of the defendant with the assault upon Finkelstein and the instrument with which he was struck.
One Edward Abraham was called by the State for the purpose of showing that the defendant was near Levich's place of business during the early evening proceeding the murder. He testified that he saw a colored man standing outside of a certain cigar store between Fourth and Fifth streets, on the north side of East Walnut, during the evening that Finkelstein was killed, but he was unable to identify the defendant as that man. The defendant thereupon moved to exclude his testimony, and the county attorney assented thereto on condition that he failed to identify the defendant as the man by other testimony. The defendant was, in fact, fully identified as the man whom Abraham had seen at that particular time and place, and there was no error in the ruling refusing to strike the testimony.
One Nellie Wells was called to the witness stand by the State and interrogated as to admissions alleged to have been made to her by the defendant both before and after the murder of Finkelstein. There was evidence tending to show that she was the paramour of the defendant, and she resolutely and consistently refused to answer any and all of the questions propounded to her by the State which were in any way material to the question under consideration. The witness was, in the fullest sense of the word, hostile to the State, although she had theretofore made a sworn statement covering the matters upon which the State sought to elicit testimony. Practically every question put to her by the State was objected to by the defendant, and it must have been apparent to the court that the defendant was offering every obstacle to the introduction of any testimony from this witness. Under such circumstances it was competent and proper for the trial court to permit leading questions, and to give the State every legitimate opportunity for refreshing the recollection of the witness, and for securing from her this important testimony. It is well settled in this State, and in most of the other jurisdictions, that leading and suggestive questions may be asked of a hostile or unfriendly witness, and that this rule does not infringe upon the other general rule that a party may not impeach his own witness, and the rule has been extended so far as to permit asking a hostile or unwilling witness if he has not at some other time and place made statements inconsistent with his present testimony. Humble v. Shoemaker, 70 Iowa 223, 30 N.W. 492; State v. Cummins, 76 Iowa 133, 40 N.W. 124; Spaulding v. C., St. P. & K. C. Ry. Co., 98 Iowa 205.
While the appellant in his original argument apparently urges the incompetency of the examination of this witness, in his reply, he shifts his ground and states that his complaint is that there was an attempt on the part of some one to coach the witness. If any such attempt was made, it did not appear when the witness was on the stand unless it be said that she had been coached in the interests of the defendant. As we have...
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