152 Iowa 383 | Iowa | 1911
Defendant admitted on the witness stand, and his counsel admitted in the argument before us, that he, defendant, shot and killed the deceased, John Tharp, at or about the time charged in the indictment, but it is strenuously insisted that the killing was in self-defense.
I saw nothing more of Tharp until I saw him standing in the darknes's at the side of Wood’s store. I did not want to meet Tharp. We stopped at Wood’s store. Bonnie went inside, 'but I didn’t. I was outside there by the door, where the vestibule is. Wood’s store was lighted up. It was close to eight o’clock. I waited until my sister came out. Then we started around the corner towards home. You couldn’t see any distance to recognize anybody. When we first came around the corner, I did not see anything of Tharp standing there. It was dark. It was between a snow and a sleet if I can remember right. It was cloudy. It was fifty or sixty feet from the corner I should judge when I came to John Tharp. When I came to John Tharp, I was walking. Mr. Tharp was standing there. We passed them. We passed I should judge ten or fifteen feet. Just before we passed, John Tharp changed his position. He was standing against the building, and he stepped out against the walk, facing the building, so that we had to pass between him and the building. As we went by, I spoke to my mother. Tharp ■says, ‘Stop, come back here.’ He said it like he was angry. From the tone of his voice it did not seem like he felt any better toward me than he had felt. I did not want any trouble with him. I obeyed him, and finally stopped. I says, ‘What do you want.?’ Mr. Tharp said, ‘Your mother wants to talk to you.’ I finally stopped. He started towards me. There was no other witness there except my mother and sister and myself. I did not see anyone down in the cellar. . . . When Mr. Tharp first got in reach of me, he grabbed me by the shoulder, and I couldn’t turn round. Finally I turned around. I got loose. Then he grabbed me by the throat, and pushed me up against the brick building. He pressed me severe and hard. My head went up against the brick building. I didn’t make any signs or speak any words while he had my head
The story was corroborated with some departures by defendant’s sister, Mrs. Starr; but the mother, although an eyewitness, was not called by either side. Against this the state introduced a purported dying declaration made by Tharp, from which we quote the following:
Mr. Tharp said that'he and his wife had been down to their little house where they had been living, packing 'up their goods preparatory to moving them over to his father’s house, where he and his father had been living before; that they worked awhile, and got cold without any fire, and concluded they would go back home, and in doing so they went by way of town, and he said: ‘We came up along the side of Wood’s store, Elmer Woods Company’s store, and met a man and a woman, and, just after we passed, I said, ‘Lem, wait a minute, your mother wants to speak to you,’ and Lem said, ‘I don’t care to talk to my mother,’ and at that moment they turned facing each other, and Lem hit him and immediately shot him; that he himself didn’t strike the boy or didn’t touch him in any way. . . . His version was that he and his wife had been down to her house; that is, where they had been theretofore living. They were down to her house
Another witness to the dying declaration testified as follows: “He says, ‘I am done for.’ He said, ‘The kid had shot him.’ I don’t remember just who 'it was that asked him who it was, it seems to me that it was me that asked him who it was, who the ‘kid’ was, and he' said it was Lem Johns. He said, ‘We started down to her house, and it was pretty cold, and we got as far as William Wood’s house, and she said, it is too cold to go down there; let’s go back. And we turned around and started back, and met Lem and Bonnie, and I said to Lem, your mother wants to speak to you, and Lem says, I won’t talk to her. I says, yes, you will; she wants to talk to you, and he said, no, I wouldn’t talk to her, and then is when he hit me and shot me.’ ” Claim is made that the trial court erred in 'admitting these declarations in evidence, but the record so clearly justifies the ruling that we shall not take time to discuss the matter further.
In addition to these dying declarations, there was testimony for the state showing a declaration made ‘by-
Upon such a record the ca-se was clearly for a jury, and with its verdict we should not interfere.
IY. The trial court gave the following instruction with reference to dying declarations:
(27) If you find by the evidence and beyond a reasonable doubt that at the office' of Dr. Downing, in Moulton, Iowa, on the night uf April 23, 1910, that the decedent, John Tharp, was in a dying condition, that he was suffering from a mortal wound which upon that night had been inflicted upon him, and that he was at the time fully conscious that he was suffering from a mortal wound and was in a dying condition, and that he then and there made the declarations and statements attributed to him by various witnesses upon the witness stand before you, and that such declarations and statements were then and there made by said John Tharp under solemn conviction of impending dissolution, and that they were made relative to the encounter between him and the defendant, in which encounter he received a mortal wound, then you are instructed that you should consider such declarations and statements as testimony in the case, and give them the same weight, and weigh and consider them by the same rules, as though made by John Tharp in person on the witness stand under oath before you.
This was followed by instructions with reference to impeachment, reading in this wise:
(28) A witness may be impeached by showing that his general moral character in the community in which he resides is bad. In this case an effort has been made so to impeach John Tharp. You will not consider this evidence unless you consider the alleged dying declarations and statements of John Tharp as explained in the preceding instructions. If you consider such declarations and statements as the > dying declarations and statements of John Tharp relative to the encounter which resulted in his death, then you will consider the evidence offered to impeach him relative to his general moral character in the community in which he resided.
(29) A witness may also be impeached by showing
Thi's general instruction was given:
(26) What have been termed the dying declarations or statements of John Tharp relative to the shooting have been admitted in evidence, and are now before the jury. Whether these declarations or statements will be considered by you in arriving at your verdict is for the jury to say. Under the law of this state when a mortal wound is inflicted upon one person by another, the person 'assailed may make a declaration or statement relative to the encounter in which the wound is inflicted, and which statement may be used in evidence upon the trial' of the person accused of inflicting the mortal wound, provided the person making .such declaration - or statement was actually dying or .suffering from a mortal wound, that he was fully conscious of such fact, and that the declaration or statement was made under solemn conviction of impending dissolution.