State v. Whitbeck

• Decision Date: 16 December 1909
• Citation: 145 Iowa 29,123 N.W. 982
• Parties: STATE v. WHITBECK.
• Court: Iowa Supreme Court

145 Iowa 29

123 N.W. 982

STATE

v.WHITBECK.

Supreme Court of Iowa.

Dec. 16, 1909.

Appeal from District Court, Fayette County; A. N. Hobson, Judge.

Appeal from conviction of murder in the first degree. Affirmed.Clements & Estey, for appellant.

H. W. Byers, Atty. Gen., Charles W. Lyon, Asst. Atty. Gen., W. C. Lewis, Co. Atty., and D. D. Murphy, for the State.

McCLAIN, J.

Defendant was charged with the murder of his father, Arlow Whitbeck, on the evening of March 18, 1908. The circumstances attending the killing, as charged, were such as tended to show willfulness, deliberation, and premeditation, and the conviction was for murder in the first degree. There was substantial evidence to support the theory of the prosecution that the crime was committed as follows: On the 17th of March, the day preceding the murder, defendant, who was about 33 years of age and had been residing with his parents for about three years on their farm working for his father for compensation, assisted his father in loading a wagon with hogs to be hauled to Ft. Atkinson, the nearest town on a railroad. He accompanied his father with the hogs part way to the town of St. Lucas, on the road to Ft. Atkinson, when they were overtaken by one Strickland driving a single buggy with whom defendant asked to ride and with whom he did ride to St. Lucas, from which place he walked part of the way and rode part to Ft. Atkinson. Defendant's expressed purpose was to take a train at Ft. Atkinson to St. Paul from which point he proposed, according to previous conversations with his neighbors, to go to Duluth, visiting on the way places at which he had previously worked. At St. Lucas he said he should take the train before noon at Ft. Atkinson, if he reached there in time. He did arrive in time for the train at 11:30 a. m., and was seen on that train going to St. Paul, where he arrived in the evening and registered and spent the night at a hotel. He left this hotel the next morning, that is, the morning of Wednesday, the 18th, on the evening of which the murder was committed, and was not seen again at the hotel until the evening of the 19th, when he again registered and spent the night there. On the forenoon of the 18th defendant was seen on a train from St. Paul to Ft. Atkinson, from which he alighted at the latter place between two and three o'clock in the afternoon. He was seen about Ft. Atkinson that afternoon by several people, and during the early part of the evening a person of the general description of the defendant, dressed as he had been dressed when seen at Ft. Atkinson, was observed by several witnesses making his way along or near the road from St. Lucas towards his father's home. About 8 o'clock in the evening Strickland, with whom defendant had ridden the day before a part of the way to St. Lucas, and who lived a few hundred rods from the Whitbeck home, went there to see Arlow Whitbeck, and going up the roadway to the barn, by the light of a lantern setting in the doorway of the barn, saw and recognized defendant, who walked away and disappeared, and found the body of Arlow Whitbeck, who was already dead, lying in front of the barn door on the driveway. The head of deceased appeared to have been crushed in by repeated blows from a wagon stake which was in a wagon bed with other stakes of the same description a few feet from where the body lay. The heavy end of the stake was covered with hair and blood and the face and part of the body were covered with blood, but there were no wounds on the body. There were no evidences of a struggle. The right hand of deceased was covered with blood, and there was hair inside the clinched palm and fingers. As above indicated, defendant was at the hotel in St. Paul on the evening of the 19th and stayed there all night. On the 21st and 22d he was seen at Rush City which is on the railroad between St. Paul and Duluth, and he was arrested at Duluth on the 24th. In this skeleton statement of the evidence many details have been omitted, and no reference has been made to contradictory evidence which might tend to throw doubt on the testimony of witnesses supporting this brief statement which will, however, furnish a sufficient basis for the discussion of many of the alleged errors of law relied upon for the appellant.

1. On the trial the court received in evidence for the prosecution the overcoat which defendant wore at the time he was put in jail at West Union after having been brought there from Duluth, and a pair of gloves found in the pocket of that coat. The gloves had on them stains which an expert testified were blood stains. The introduction of these articles in evidence was objected to on the ground that they were not properly identified by proof of continuous custody in the hands of the witnesses who testified from the time they were taken from the defendant until they were offered on the trial. Without setting out in full the evidence in this respect, it is sufficient to say that we do not find the objection well founded. The custody of these articles was sufficiently accounted for by witnesses who showed that they had possession of them until they were offered in evidence before the grand jury, and that the gloves were then in the condition in which they were subsequently found to be when they were offered on the trial of the case. In the meantime they had been kept in a valise belonging to the defendant (which, however, was not introduced in evidence), and had been in the office of the sheriff. The valise was not sealed, and the office was open to the public, but the valise was put in a place where it would not have been readily accessible, and in view of the fact that the gloves appeared to have been in the same condition when they were produced before the grand jury as they were when offered on the trial, we think there was no error in permitting their introduction. The possession of the overcoat and gloves was sufficiently accounted for by witnesses testifying on the trial to negative any reasonable claim that they had been changed or tampered with from the time they were taken from defendant's custody to the time when they were introduced in evidence.

2. One of the doctors who made the post mortem examination of the body of deceased early in the morning of the day after it was first discovered testified that there was in the right hand of deceased which was clinched some hair and tissue, and that on comparison he found it to be similar to hair taken from the head of deceased and to the hair found on the club with which the blows on the head of deceased appear to have been inflicted. The objection to this evidence of comparison by the doctor was overruled, and as we think, without error. The doctor did not qualify to testify as an expert, but a nonexpert may give his opinion as the result of such comparison, if there is no better evidence available. Commonwealth v. Dorsey, 103 Mass. 412;Crumes v. State, 28 Tex. App. 516, 13 S. W. 868, 19 Am. St. Rep. 853. This principle has been approved by this court as applied to footprints. State v. Millmeier, 102 Iowa, 692, 72 N. W. 275. Hair taken from the head of deceased was not offered in evidence, but exhibits consisting of hair taken from the club and hair taken from deceased's right hand were introduced. There was, therefore, no opportunity for the jury to compare the hair of deceased with the hair found in his hand, and the testimony of the doctor was not open to the objection that the jurors were as competent as he to make such comparison.This was the objection sustained to expert testimony as to comparison of hair in the case of Knoll v. State, 55 Wis. 249, 12 N. W. 369, 42 Am. Rep. 704. We think any witness competent to state his opinion as the result of such comparison as an ordinary person could make when the objects to be compared are not introduced in evidence. A witness should not be confined to a statement of points of similarity merely, for it would be impracticable to so describe the particular points of resemblance as to put the jury in the same position as the witness to determine the question of similarity. At most the testimony received had very slight bearing on the case. The only advantage defendant could have from the appearance of the hair found in the hand of deceased would be as pointing to some other person than defendant as the one who committed the murder. No claim was made for defendant that the hair resembled that of any other person who might have been guilty of the crime. There was certainly no prejudicial error in the ruling.

3. Complaint is made of instructions submitting to the jury the question of defendant's guilt in the first or in the second degree of murder on the ground that the evidence did not tend to show murder in either degree. By this objection counsel seek to have us pass specifically on the sufficiency of the evidence as to willfulness, deliberation, and premeditation, and as to whether the killing was with malice aforethought. This is not within our province. The sufficiency of the evidence to support the verdict will be hereafter considered, but we are not called upon to determine whether as a matter of law there was specific evidence of premeditation, deliberation, or malice aforethought. State v. Baker, 121 N. W. 1028;State v. Dillingham, 121 N. W. 1074. The evidence tended to show that the blows which caused the death of deceased were inflicted with a heavy club which under proper instructions on this subject may have been found to be a deadly weapon, and deliberation and premeditation were to be determined in the light of the circumstances as they appeared from the evidence.

4. In one of the instructions the court told the jury that it would be presumed from the voluntary use of a deadly weapon in a manner known to be calculated to destroy life, if death resulted therefrom, that such result was intended in the absence of evidence to the contrary, and in the following instruction a...