State v. Wilson

• Decision Date: 06 May 1913
• Citation: 141 N.W. 337,157 Iowa 698
• Parties: STATE v. WILSON.
• Court: Iowa Supreme Court

157 Iowa 698

141 N.W. 337

STATE

v.WILSON.

Supreme Court of Iowa.

May 6, 1913.

Appeal from District Court, Calhoun County; M. E. Hutchison, Judge.

The defendant was indicted with one Roy Mertens for murder in the first degree. The indictment was in three counts--the first count was in the ordinary form, charging first degree murder; the second charged that the killing was done at a time when defendants were engaged in the perpetration or attempt to perpetrate a burglary; and the third charged that defendants broke and entered the dwelling house of James White with intent to commit a public offense, to wit, larceny and robbery. Separate trials were had. This is the second trial of the case as to this defendant. The first trial was had in Sac county, and resulted in a disagreement of the jury. A change of venue was then taken to Calhoun county, and defendant was convicted of murder of the second degree. He was sentenced to the penitentiary for life, and appeals. Affirmed.W. H. Hart, of Sac City, E. C. Stevenson, of Rockwell City, and Faville & Whitney, of Storm Lake, for appellant.

George Cosson, Atty. Gen., John Fletcher, Asst. Atty. Gen., and W. A. Helsell, of Odebolt, for appellee.

PRESTON, J.

About midnight of May 29, or early in the morning of May 30, 1911, James White and his son, Matthew White, were killed within a few minutes of each other in the home of the father. The pistol shots which caused their death were fired by defendant Wilson, or his codefendant, Mertens. They were jointly indicted for the killing of the senior White. Defendant admits he went to the house with Mertens, but denies that he was inside where the shooting took place.

The coroner, Dr. Townsend, who was also a physician and surgeon, arrived at the scene about 2 o'clock in the morning of May 30th, and found the old gentleman lying on his back, on the floor in the sitting room, dead. Matthew was lying on the kitchen floor, dead. The sitting room is designated on the plat used in evidence as “A” and the kitchen as “D.” There were two bullet wounds in the body of James. The coroner, Dr. Townsend, described the wounds, and gave it as his opinion that both were fatal, and that one of them was instantly so. In one of the wounds as described the bullet entered the left arm about 2 1/2 inches below the shoulder, passed directly through the body and through the skin of the right arm on a due level through the body. There were vital organs in the line where the bullet would likely touch. In the other the bullet entered the left chest three inches to the left of the median line between the first and second ribs, and passed through and out at the upper angle of the shoulder blade.

William White, another son of deceased, who claims to have seen this defendant fire the shots, testified that said deceased was in the sitting room when shot, that defendant pointed the pistol at deceased, and that deceased fell to the floor at the first shot, and that the second shot was fired when deceased was down. So that there was direct evidence, and some other circumstances, tending to show that deceased was shot while in the sitting room. Defendant's counsel claim there were some circumstances tending to show that deceased was in the kitchen when he was shot, and that, if this is so, William could not from his position have seen the shooting, or at least the first shot.

[1] There were three wounds on the body of Matthew. Some of the witnesses say there were five shots altogether, and others say six. It was an important question whether James White was in the sitting room, or in the kitchen when he was shot. On re-examination Dr. Townsend was asked: “Q. As a matter of the knowledge of a doctor and the knowledge of the wound which you examined, do you believe it was a physical possibility for Mr. White, after he received the second shot, or the first shot, or whatever it was which went through his breast and through his two arms to have walked from room ‘A’ into room ‘D’ to room ‘A’ and fallen on his back? (The defendant objected as not proper redirect examination, incompetent, irrelevant, and immaterial, calling for the belief of this witness, and as seeking to cross-examine his own witness, and it is seeking also to invade the province of the jury, the question of the belief of this witness is wholly immaterial. Overruled, and exception.) A. It was my belief that he never could have walked from that kitchen. Q. You don't believe that he could ever have walked from that kitchen to that room and fallen where you found him after that second shot went through? (Same objection, ruling and exception.) A. That is my belief.”

The argument here is that the court erred in permitting the witness to state his belief, and urges that the manner in which the question was asked permitted the witness to in effect step into the jury box and express his belief whether deceased was shot in the kitchen, or in the sitting room. If the question was as to whether the witness could have been asked where deceased was when shot, there would have been force in the objection. The fact is the witness did testify, on re-cross examination, and without objection, that it was his belief that deceased was in the kitchen when the shot was first fired, and went to the sitting room where he was shot the second time. This was favorable to defendant; that being his claim. Witness also testified without objection to his belief that the shot where the bullet went through the body between the second and third ribs was the first shot. He also said it was a mere matter of guesswork, and that he did not know where deceased was when shot. His belief that deceased was first shot when in the kitchen seems to be based on the assumption that a bullet found in the wall in the kitchen passed through the body of deceased. The question here complained of did not ask for the belief or opinion of the witness as to where deceased was when shot, but whether, with such a wound, deceased could, in the opinion of the witness, have gone from the kitchen to the sitting room as an aid to the jury in determining the fact as to where deceased was. This question did not ask for the ultimate fact. The witness qualified as an expert; and, while the word “belief” is used, we think it is clear that he was giving his opinion, and the question asked for his judgment or opinion as a physician. In State v. Harris, 97 Iowa, 407, 66 N. W. 728, the word “belief” in an instruction was criticised. The instruction defining reasonable doubt stated, in effect, that, if the evidence created in the minds of the jurors a belief in defendant's guilt, they would not have a reasonable doubt that he was guilty. The court said this was not necessarily true. That a person may entertain a belief in regard to a matter which is not sufficiently firm to exclude all reasonable doubt. The statement in the instruction was qualified by other language, so that, while the instruction was criticised, the case was not reversed. While the use of the word “belief” in an instruction, such as that, is subject to criticism, it has no application here. In some cases a witness may testify as to his belief. Lawson, Expert on Opinion Evidence, 598; Jones on Evidence (Pocket Ed.) § 170; Chew v. O'Hara, 110 Iowa, 81, 81 N. W. 157. But these cases do not apply here, for the reason, as we have already said, the question called for the opinion of an expert, and his answer was his opinion. But it is said by appellant that, if the doctor was an expert, the question and answer allowed the witness to invade the province of the jury, and cites Sever v. Railway, 137 N. W. 937. The rule is there stated and the cases collated. In that case the question propounded to the witness required him to enter the domain of the jury, and pass upon one of the ultimate facts. We think this is not so in this case. The witness had testified that in his opinion when deceased received the bullet that went through the body and arms he dropped; that it was instantly fatal, and the question now under consideration simply called for his opinion whether with such a wound he could walk from one room to another. This was perfectly proper, and there was no error at this point. Under the circumstances here shown, “the nice philological distinction between the words ‘opinion’ and ‘belief’ are too subtle and refined to form a basis on which to ground substantial justice.” Day v. Southwell, 3 Wis. 657, 661.

[2] 2. Dr. Townsend testified, without objection, that when they embalm a body they establish a circulation through the veinous system; and, if any difficulty arises in establishing it until the chest is filled with the fluid, it would show that there was a large artery open in the chest. Witness Temple testified that he had been an undertaker for 10 years, and had had considerable experience; that he embalmed the body of James White by taking up an artery in the arm, and forcing embalming liquid through the arterial system; that when he started to inject the fluid the chest cavity filled up and stopped the circulation. Thereupon, this question was asked him: “Q. As borne out by your experience, what did that show you? (Defendant objected as calling for the opinion and conclusion of the witness, and that no proper foundation had been laid. The objection was overruled, and the witness answered.) A. There must have been a main artery cut, or an incision in a main artery. Before I could get any circulation, I had to fill the chest of James White full.” It was said that no sufficient foundation was laid; that the witness was no more competent to tell what the action of the embalming fluid would be than any other person would have been. It is true that there had been no post mortem on the body, so that it could be told certainly whether an artery had been cut by the bullet. The doctor had testified to substantially the same thing. The witness Temple was an undertaker of 10 years' experience....