151 Iowa 197 | Iowa | 1911
Defendant and .the deceased, Henry Schranz, were bricklayer’s helpers, residing together in the city of Dubuque for some weeks prior to the 27th day
Eor a reversal of the judgment appellant’s counsel contend, first, that counsel for the state was guilty of misconduct in his examination of the defendant while on the witness stand and in his argument to the jury; second, that the court erred in failing to give any instruction to the jury with reference to the effect of testimony adduced by the defendant showing his good character; third, that the court erred in giving certain of its instructions to the jury; and, fourth, that the verdict is contrary to the' evidence and is not supported thereby.
Counsel for State: I might suggest to counsel that this is for the purpose of testing the credibility of this witness, subject to the same rules as any other witness.
Counsel for Defendant: I don’t see how that would in any way test the credibility of the witness. The question that has been asked, how that would in any way tend to throw any light upon the credibility of this witness. It is apparently an' attempt to get into this record some matter which is entirely foreign and outside of the record, and good for no purpose or object of any kind in this case.
By the Court: I.think I will sustain the objection. There is no question but what in the civil practice that might be allowed and competent.
Counsel for State: Of course, the court has the say on the proposition, but I take issue with the court on that proposition. Any witness taking the stand we have a right to show anything that would tend to discredit the witness. (State duly excepts.) . *
Q. You may state if you consulted any lawyer upon the proposition of your continuing to live with the wife that you had married in ’this country in the year 1908 ? (Defendant objects as prejudicial, not cross-examination, and asked for the purpose of prejudicing the jury, and counsel knows that the question itself is incompetent and improper. Objection sustained, and state duly excepts.)
Defendant is here shown “State’s Exhibit 1” (being the double-barreled shotgun introduced in evidence by the state upon its main case), and the county attorney asks of defendant: Q. Is this your gun?
Counsel for Defendant: Objected to as incompetent, irrelevant, and immaterial, not cross-examination; nothing asked on direct examination about that. If the state wants to make him their witness, I have no objection, but it is not cross-examination.
By the Court: This man was interrogated, was he not, as to what was in that house ? lie may answer. (Defendant duly excepts.)
A. Yes, sir. Q. When was the last time that you
Counsel for defendant: We make the further objection for the reason that this witness has not been examined in relation to the statement (State’s Exhibit 2), and it is therefore not cross-examination.
By the Court: I assume yon will interrogate him in regard to this statement, 'State’s Exhibit 2 ?’
Counsel for the State: I certainly will.
By the Court: He may answer. (Defendant duly excepts.)
A. About a couple of weeks. Q. What was the occasion of having the gun? Where were you? (Same objection. Objection overruled, and defendant duly excepts.) A. I cleaned it. Q. How long before the 27th day of August was it that you had this gun over on the slough ? (Defendant _ objects as not cross-examination.)
_ Counsei for Defendant: I would like to suggest to the court in this matter, as to the introduction of this statement (State’s Exhibit 2), that the state can not introduce the statement as part of their case, .and then turn around and cross-examine him about it; that is one of the further grounds on which we object to this line of examination. (Objection overruled, and defendant duly excepts.)
A. Well, I don’t remember that I had it on the slough. Q. You don’t remember of -having this gun on the slough? A. No, sir. . . . Q. Do you remember whether you put shells in it at that time or not — when you cleaned it? (Defendant objects as not cross-examination, incompetent, irrelevant, and immaterial. Objection overruled, and defendant duly excepts.) A. I didn’t put no shells in it. Q. Did you have any shells in your room; (Same objection. Objection overruled, and defendant duly excepts.) A. Yes, sir. Q. You may look at State’s Exhibits 3, 4, 5, and 6, and state whether the shells you had in your room were similar to those, A. No, sir. Q. I will ask' you if those shells, Mr.' Brandenberger, will fit your gun? A. I can’t tell you.
Counsel for Defendant: Objected to as calling for the- opinion or conclusion of the witness, incompetent, ir
By tbe Court: Tbe answer may stand. (Defendant duly excepts.)
Now, while tbe statute (Code, section 5485), provides tbat when tbe defendant testifies on bis own behalf, be shall be- subject to cross-examination as an ordinary witness, but tbat the state shall be strictly confined therein to tbe matters testified to in tbe examination in chief, yet it is the' rule of this court, as everywhere, tbat such witness stands upon tbe same footing as any other with relation to bis memory, history, motives, or matters affecting bis credibility. See State v. Kuhn, 117 Iowa, 216; State v. Red, 53 Iowa, 70; State v. Watson, 102 Iowa, 654; State v. Chingren, 105 Iowa, 172; State v. O'Brien, 81 Iowa, 93; State v. Wasson, 126 Iowa, 321. Again; it is quite generally held tbat the extent to which such inquiries may be carried must necessarily rest in tbe sound discretion of tbe trial court. See State v. Ohingren, supra. In O'Brien’s case, supra, it was held tbat a defendant as a witness may be cross-examined as to crimes theretofore committed by him in order to impeach him, citing State v. Kirkpatrick, 63 Iowa, 554; State v. Teeter, 69 Iowa, 717. In Chingren's case, supra, tbe defendant was-cross-examined with reference to bis prior occupations, and this indicated tbat be bad been running a gambling machine. Such inquiry was held proper as showing bis Occupation, although there, as here, defendant was directly asked as to whether or not be bad been running a gambling institution. Objection to tbe question was sustained. In Watson's case, supra, tbe defendant was cross-examined as to bis various places of residence, bis going under assumed names, and as to bis whereabouts at particular times, and this was held within tbe discretion vested in tbe trial court. In Wasson's case, supra, defendant on bis cross-examination was asked as to bis former residence and occupation,
At any rate, the trial court did not abuse the discretion vested in it, and no prejudice will be inferred from the record as it now appears. State v. Seery, 129 Iowa, 259; State v. Porter, 34 Iowa, 131.
Now, while it is the duty of the court in a criminal case to fairly present the issues in its charge to the jury in order that they may have a clear and intelligent notion as to what they are to decide, yet it is not necessary that the court on its own motion instruct upon every matter
Ordinarily this court will not reverse for failure to give instructions not asked, unless it be satisfied that such failure has deprived defendant of a fair trial. State v. Hathaway, 100 Iowa, 225. Following these general rulesg it has been held not erroneous for the court to fail to' instruct as to an alibi where no such instruction was asked. State v. Lightfoot, 107 Iowa, 344. Again, failure to instruct as to self-defense where no such instruction was asked was held not erroneous. State v. Woodard, 84 Iowa, 172. And in State v. Seevers, 108 Iowa, 738, it was held that as to • any matter not referred to in the pleadings or the issues, but introduced into the case by competent and material testimony, failure to instruct with reference to this testimony in the absence of a request is not erroneous. See, as further sustaining these views, State v. House, 108 Iowa, 68; State v. Miller, 65 Iowa, 65; State v. Stevens, 67 Iowa, 557; State v. Nadal, 69 Iowa, 483; State v. Gaston, 96 Iowa, 505. While we apparently have no case covering the exact proposition, the rule in other states seems to be that in the absence of request, failure to instruct as to evidence of good character in a criminal case does not constitute reversible error. Heard v. State, 9 Tex. App. 1; Pharr v. State, 9 Tex. App. 129. The only case apparently to the contrary is State v. Anslinger, 171 Mo. 600 (71 S. W. 1041.) But that decision is bottomed upon a statute which requires the court whether requested or not to instruct the jury whenever necessary upon the subjects of,good character and reasonable doubt.
Y. Instructions challenged by counsel read as follows :
(33) You are instructed that tbe claimed unconsciousness, such as testified to by tbe defendant, should be carefully considered and weighed by you. It is a claimed condition of the mind that can be easily asserted or manufactured, and one that is difficult to disprove, and tbe evidence establishing same must be conclusive to your minds that it is true. In determining tbis, if you find that the evidence on tbe part of tbe defendant does not outweigh tbe evidence on tbe part of tbe state in regard thereto, or, in other words, if you find the evidence adduced on tbe part of tbe defendant and that on the part of tbe state equally balanced, on that subject, then tbe necessary preponderance, or greater weight of tbe evidence, in favor of tbe defendant would be wanting, and tbe defendant has failed to establish tbis condition of uncon
The thirty-first instruction is clearly correct, and needs no argument in its support. If one through passion or revenge does an act, he is certainly not unconscious, but is clearly amenable to the Taw.
Having in mind, then, that the court was treating defendant’s claim of unconsciousness as the equivalent of insanity, it was in error in charging in the thirty-third instruction that the evidence to establish the unconsciousness must be conclusive. Nothing more was required of the defendant than that he show this claimed unconsciousness by a preponderance of' the testimony. This is the rule applicable where insanity is claimed as a defense. See State v. Felter, 32 Iowa, 49; State v. Bruce, 48 Iowa, 530; State v. Jones, 64 Iowa, 349; State v. Geddis, 42 Iowa, 264; State v. Thiele, 119 Iowa, 659. And such a defense, like that of an alibi, must be proved by the defendant by a preponderance of the evidence (State v. Hemrick, 62 Iowa, 414); and, unless it be established by such preponderance, it is not sufficient to raise a reasonable doubt. See cases hitherto cited. The only case which in any manner supports the charge as given is State v. Novak, 109 Iowa, 717. The instruction there considered, however, is not so broad as the one now before us in that, as the court said: “In the other sentence of the
The word “conclusive” means “decisive, irrefutable.” In Hoadley v. Hammond, 63 Iowa, 599, we said: “It is certainly true that these instructions must be regarded as announcing the law of this case, and in determining it they will be so treated. But we can not assent to their soundness, and give them recognition as expressing correct rules. We regard them only as applicable to this case, for the reason that it is not in a condition to authorize us to review them. By these instructions the court below did not attempt to weigh the evidence for the jury, but simply directed them that, in order to reach certain conclusions, the evidence must be ‘clear, satisfactory, and conclusive’ to
As 'defendant was entitled to an acquittal, if he showed his unconsciousness (insanity) by a fair preponderance of the testimony, the instruction was erroneous, and for this reason the judgment must be, and it is, reversed.