State v. Warner

• Decision Date: 21 September 1912
• Citation: 157 Iowa 111,137 N.W. 466
• Parties: STATE v. WARNER.
• Court: Iowa Supreme Court

157 Iowa 111

137 N.W. 466

STATE

v.WARNER.

Supreme Court of Iowa.

Sept. 21, 1912.

Appeal from District Court, Van Buren County; C. W. Vermillion, Judge.

Defendant was indicted for the crime of manslaughter, due to the reckless and careless use of a deadly weapon. Upon trial to a jury he was convicted of the crime charged and appeals. Affirmed.J. C. Mitchell, of Ottumwa, and Walker & McBeth, of Keosauqua, for appellant.

George Cosson, Atty. Gen., and John Fletcher, Asst. Atty. Gen., for the State.

DEEMER, J.

On the afternoon of Sunday, May 7, 1911, defendant, with William Gillespie and one other, went from the town of Bentonsport to a shed at the railway stockyards in said town and there found five other men playing poker, among whom was the deceased, Howard Runyon. The men were about a car door lying across some logs. Defendant was carrying a 22-caliber rifle with him, and when he arrived he said to deceased, “Bunny” (meaning the deceased), “let me shoot at your hat.” Deceased took off his hat and threw it some feet distant and southward from where he was sitting, evidently in response to the request. At any rate, defendant immediately shot at it several times, amidst laughter from the crowd, and finally deceased went and got it, remarking to defendant, “Are you satisfied?” Having regained his hat, he went back to his place and resumed the game. In a few minutes defendant again discharged his gun, this time in the direction of Runyon; the ball puncturing his (Runyon's) skull, resulting in his death in a few hours. Just before the shot was fired, some one in the party, observing that defendant was pointing his gun in the direction of the deceased, cried out, “Look out, Bunny, he is going to shoot.” Immediately the fatal shot was fired.

The state does not claim that the shooting was intentional, but insists that it was done with such reckless disregard of human life as to constitute involuntary manslaughter. On the other hand, it is contended for defendant that the shooting was wholly accidental, and that no crime was committed. Testimony was adduced tending to show that the accused either deliberately aimed at the hat which deceased had replaced upon his head, thinking that he was expert enough to puncture it without injuring deceased, or that he was aiming at some nail or imaginary mark just over the head of the deceased and by reason of bad marksmanship or through some factitious circumstance hit the deceased in the head instead of the mark which he had selected. Immediately after the shooting, defendant remarked, “If they had kept their mouths shut, it would not have happened,” having in mind, no doubt, the cry of warning made to deceased by one of the bystanders. His claim at the trial was that he was shooting at a certain nail head the range of which was but a short distance over the head of the deceased as he was sitting in a crouched position over the improvised table while the cards were being dealt, and that hearing the warning cry he (deceased) raised his head and body so that his head came within range, and thus received the wound from which he died. Learned counsel for appellant recognize that the case made for the state was for a jury and that there is abundant testimony to support the verdict; and we may, with propriety, add that the only excuse which can be offered is that all interested parties were more or less intoxicated and all more or less engaged in illegal acts. But neither of these things palliate, much less excuse, the act. According to defendant's own testimony, he was aiming at and intending to shoot at a small mark so nearly in range with Runyon's head that by raising it a few inches he brought it into such position as to receive the ball. It is said that defendant was an expert marksman and might reasonably have supposed that he could imitate William Tell; but we doubt if an expert would undertake any such hazardous performance, and his excuse is far from Tellian in character.

The real points relied upon for a reversal revolve around three propositions: First, it is contended the court erred in the admission of testimony; second, that it erred in giving certain instructions and refusing certain others with reference to what constitutes involuntary manslaughter; and, third, that it erred in giving an instruction to the jury after it had been out for some hours with reference to its duty in the premises.

I. William Gillespie was a witness for the state and was examined fully regarding the circumstances attending the shooting. He was also called by defendant as a witness on his behalf after the state had rested, who had him testify as to his meeting him (defendant) about 11 o'clock in the morning of the day of the homicide and of what occurred from that time down to the time of the shooting. One of the objects of this was to show that defendant was not intoxicated at the time of the shooting. Indeed, he testified in chief directly that defendant did not drink anything from 11 o'clock a. m. until the time the fatal shot was fired, and that neither he nor defendant had been drinking or were intoxicated, that day. On cross-examination he was asked the following questions, to which he made the answers indicated: “I went after Dr. Schee. I had some conversation there with him. Q. I will ask you whether or not the doctor said this to you and you then said in reply, ‘You fellows have been boozing some down there to-day,’ and you said, ‘Well, not very much.’ A. No, sir. Q. You did not say that to Dr. Schee? A. No, sir; I did not say it. Q. I will ask you whether or not you stated to the doctor, at that time, and as a part of that conversation, something like this: ‘This thing of shooting at a man's hat when on his head is not right.’ A. No, sir; I did not say that. Q. And isn't it a fact that the doctor said to you, ‘Did Warner shoot at the hat when on his head?’ and you replied, ‘Yes, sir; he did.’ (Same objection as before.) The Court: I think I will sustain the objection as to this last question. The objection to the question asked of this witness as to what he said to Dr. Schee concerning the shooting of the hat is sustained and withdrawn from the consideration of the jury, and they are not to consider it for any purpose.”

The doctor referred to in this record was in due season called as a witness by the state in rebuttal, and the following record was made: “Will Gillespie came for me on the day Howard Runyon was shot. Q. What would you say to his condition, as to whether or not he was intoxicated or otherwise? A. Well, I would not say that he was badly intoxicated, but I would say that in my opinion he had been drinking. To a certain extent he was under the influence of liquor. Q. I will ask you to state whether or not you said something to him like this, ‘You fellows have been boozing down there some to-day,’ and he replied, ‘Well, not very much.’ A. I asked that in the form of a question. I think I said, ‘Haven't you?’ Q. And what did he say? (Same objection and ruling as last above. Excepted to.) A. ‘Well, not very much.’ ” The witness was then cross-examined by defendant's counsel and the following elicited: “Among other things, he said that Bunny Runyon had been shot or scalped down at the stockyards by John Warner, and he wanted me to go down and tend him. He said it in a very clear, intelligent way, so that I understood it very plainly. He said it just as clearly and as plainly as a sober man would say it. He was somewhat excited and seemed alarmed.” On redirect the following record was made: “Q. You say that when Gillespie came up there he says, ‘Bunny Runyon has been scalped, and I want you to go down there’? A. I think he said ‘had been scalped by John Warner shooting with the rifle.’ Q. Was that all that he said? A. No, sir. Q. What else did he say? (Defendant objects to that. We did not call for it.) The Court: It may go in as bearing on Gillespie's condition at the time. (The ruling of the court is excepted to.) Defendant's Attorney: We object to anything else that was said as not rebuttal and hearsay. The Court: Same ruling. (Same exception.) A. He said, ‘This thing of shooting at a man's hat when it is on his head ain't right.’ Defendant's Attorney: We move to strike out the answer as not rebuttal. The Court: The evidence is received only as it may bear on Gillespie's condition at the time, and not as any contradiction of Gillespie's testimony to be inferred from the alleged statement, but only bearing, if it does, on Gillespie's condition at the time the statement was made. (To which ruling of the Court the defendant excepts.) Q. Was anything else said by you to Mr. Gillespie? A. Yes, sir; I made the reply to that statement, but if that is overruled-- (Defendant objects for the same reason as before.) The Court: I don't see how it is material. He may answer. (To which ruling the defendant excepts.) A. He made that statement that I have just repeated, and I said, ‘Did Warner shoot at the hat when it was on his head?’ A. Yes, sir. Defendant's Attorney: We move to strike out the last answer as incompetent, immaterial, hearsay, and not rebuttal. The Court: Overruled, but the evidence is only introduced, as bearing, if it does, on Gillespie's condition of intoxication or otherwise at the time, but it is not to be considered for any other purpose whatever. (To which ruling defendant excepts.)”

[1] Except as shown, each and all the questions put to this witness on his direct and redirect examination were objected to by defendant's counsel upon every conceivable ground. The chief argument now made is that the state should not have been permitted to impeach its own witness and should not have been allowed, under the guise of rebutting the defendant's case, to put into the record hearsay and incompetent testimony. There is nothing in the first of these contentions. Defendant made Gillespie his own witness and elicited from him certain evidence which had not...