State v. JohnsonState v. Johnson
- Reporters:
- ,
- Before:
- Parsons, Donegan, Anderson, Kintzinger, Richards, Hamilton
The defendant and his wife, Dessie Johnson, lived in the city of Des Moines at 1716 Logan, and had a V-8 black Ford coupe carrying Polk county license plates 77—35980, in the name of Dessie Johnson; that on May 25, 1934, at near midnight, the defendant was at the Blue Moon, a roadhouse about two miles out of Galesburg, Illinois, on highway No. 34, and that there was a large crowd there dancing and drinking; that the defendant and two others came in, the defendant having a
The further facts that could be found by the jury are that
There was further evidence in the case that the defendant was taken as a prisoner to Fort Madison for safe-keeping, and while there he was heard in conversation with a convict, who said to him: “Yоu got yourself in a hell of a fix. What did you want to smoke him down for?” and defendant replied: “It was either me or him, and I am damn sure it wasn‘t going to be me; I can‘t stand another pinch.”
The defense introduced was in the nature of an alibi. The jury could believe the alibi witnesses or it could believe the four or five witnesses that saw the defendant in Illinois on the 25th and 26th of May, 1934, or the various witnesses who saw the defendant in Burlington; and could, if it believed the alibi established, have found the defendant not guilty; but it did not so find. After considering all the evidence, it found the defеndant guilty of murder in the second degree. Evidently the jury must have believed the four or five witnesses who saw defendant in Illinois, and who saw him after he was arrested; and believed the witnesses who saw him in Burlington after the arrest, and all identified him, and found that the other facts and circumstances warranted his conviction.
So there was sufficient evidence to sustain the verdict, and, the jury being the judges of that, unless there is prejudicial error in the record which calls for a reversal of the case, we should not reverse.
It is claimed that the cоurt erred in giving instructions to the jury by not going below manslaughter in the charge. In this there was no error. The rule is that an included offense must be submitted to the jury on the concurrence of two facts, to wit: First, when such included offense is an included offense
In the trial of the case there was a concession by the defendant, through his counsel, in open court, thаt Capt. Sauer came to his death as a result of the gunshot wound inflicted. The court in its instructions did not submit any charge below manslaughter. It being admitted in the record in this case that Capt. Sauer died from the wound inflicted on him on the morning of May 27, 1934 whoever inflicted that wound was guilty of causing the death of Sauer. There is nothing in the record whatever that would have justified the giving of any of the instructions on a lower degree, because, when death results, as the result of the act herein charged, it is homicide, which is divided into first degree murder, secоnd degree murder, and manslaughter, the unlawful killing of a human being without malice. State v. Woodmansee, 212 Iowa 596, 233 N. W. 725, says the court need not and should not instruct on manslaughter when the record reveals no element of such offense, and lays down the rule that, in the absence of evidence to the contrary, the use of a deadly weapon in a deadly manner generates a presumption of malice, but not a presumption of willfulness or premeditation. So, as manslaughter is the unlawful killing of a human being without malice, it may sometimes be not error to refuse even an instruction of manslaughter in such case.
In State v. Walker, 133 Iowa 489, on page 498, 110 N. W. 925, 929, the court said:
“The record in the case clearly shows that, if the defendant is guilty of any crime, he is guilty at least of the crime of manslaughter. We have repeatedly held that, in such cases,
it is not error to omit instructions covering a lower degree of crime included in the indictment.”
State v. Quan Sue, 191 Iowa 144, 179 N. W. 972, holds that an accused on trial for murder in the first degree has no right to demand that the court submit to the jury the included offense of manslaughter, when the record is bare of any evidence tending to prove manslaughter. The right to demand the submission of included offenses does not embrace the right to demand that the jury be turned loose in whimsical license or latitude to do as it pleases, irrespective of the evidence; and this is true though the court submits murder in the second degree.
So an examination of all these cases fully sustains the rule as laid down. Besides that, there is scattered through the Iowa reports a dozen cases or more prior to any of these cited from which can be deduсed only this rule. Manslaughter being the mere killing of a human being without malice, ordinarily is given, as there may be a possibility that it may have been absent and no prejudice to the defendant may exist from the inclusion of it within the instruction.
The defendant complains of the admission of the testimony as to what took place at the Blue Moon adjacent to Galesburg, Illinois. What took place at the Blue Moon might very well account for the appearance and actions of the defendant at the Arcadia, beсause having just participated in a holdup at the Blue Moon the day before, it would account for defendant‘s nervousness in a public place only twenty or twenty-five miles away several hours later. There is nothing in the objection of the defendant that either the Blue Moon incident or the Arcadia incident was too remote in point of time to be admissible. Taking the distance that Galesburg is from Burlington, testified to, and the distance from Des Moines to Burlington, which distances we have a right to take cognizance of, if thе defendant was at the Blue Moon even on the 25th and appeared on the evening of the 26th at the Arcadia, and the next morning was in Burlington at the time the crime was committed, to hold this not connected we would have to assume that it would be reasonably possible, and probable that the defendant would flee for fear of the consequences of the Blue Moon incident, come to his home in Des Moines, and then be
This court in State v. Hickman, 195 Iowa 765, 193 N. W. 21, had practically this question to consider. There the deputy sheriff had been shot. An hour or two before the shooting there was a crap game at the railway Y near the depot in Shenandoah, in which a number of men participated. While the game was going on, the defendants came, and, at the point of revolvers, forced the crowd of men who were participating in the game to line up with their heels to the rail, and took from the persons of different ones considerable sums of money. A short time after the robbery some of those who were present informed the city marshal of the occurrence, and about half an hour thereafter the deceased, Patton, deputy sheriff, was also informed of the transaction, and requested his informant to go with him to identify the men who had perpetrated the holdup. Patton telephoned to Bingham to have men there arrest the parties and hold them until he should come. Patton and two or three others went to Bingham on the train, and, as it approached the depot in Bingham, defendants were seen running ahead of the trаin toward some tie piles a short distance from the depot. About the time the train passed the tie piles, before the train stopped, the city marshal said to Patton, “Here they are Bert,” and Patton came across from the east side of the train and jumped off on the southeast side of the station,
“It is thought by appellant that the court erred in permitting evidence of the transaction in the afternoon at Shenandoah, because it was a transaction separate and distinct from the charge in the indictment. It is, as contended by appellant and supported by authorities cited, the general rule that the state is not permitted, in its effort to establish the crime charged, to introduce evidence of another substantive offense. But the rule is that, where the acts are all so сlosely related in point of time and place, and so intimately associated with each other, that they form a continuous transaction, the whole transaction may be shown,—what immediately preceded and what immediately followed the act complained of,—for the purpose of showing the scienter or quo animo of the party charged. Every fact, every circumstance, surrounding the parties, attending their action, from the time of the meeting to the separation, is material to a proper understanding of their relationship, and has probative force in establishing their conduct towards each other.” Then says: “Conceding that the holdup in the afternoon was a separate offense, it was closely and directly related to the killing, a short time thereafter. The afternoon transaction was material, as throwing light upon the purpose, motives, and intention of the defendants in the later shooting. They were conscious of having committed a felony a short time before. They were trying to escape, аnd to prevent arrest. Their conduct and the circumstances were such as to show that they were expecting arrest.”
The opinion then calls attention to the fact that this evidence was not denied. It further says: “We think, too, the evidence was admissible on the question of identity of the defendants. Witnesses present at the transaction in the afternoon identified the two defendants; identified their hats, their weapons, and their clothing. They were identified by the same witnesses, shortly before the train arrived at Bingham, as the same persons they had seen in the afternoon, at and even be-
Regina v. Briggs, 2 Moody & R. 199, an old English case, holds that, where one has committed a crime and is on trial for another crime, and it becomes material to show that the defendant was in the vicinity of where the crime for which he is on trial was committed, a witness as to his presence at or near the crime may go into all the circumstances of his meeting or seeing the defendant, even if it involves the commission of another crime.
State v. Leroy, 61 Wash. 405, 112 P. 635, 638, lays down the rule:
“Testimony otherwise relevant does not become incompetent because it may tend incidentally to show that the accused has committed another crime.”
To the same effect is Reed v. State, 54 Ark. 621, 625, 16 S. W. 819; People v. McGilver, 67 Cal. 55, 7 P. 49; People v. King, 276 Ill. 138, 114 N. E. 601; Richardson v. Commonwealth, 166 Ky. 570, 579, 179 S. W. 458, 459; Morse v. Commonwealth, 129 Ky. 294, 111 S. W. 714; People v. Thau, 219 N. Y. 39, 113 N. E. 556, 3 A. L. R. 1537; State v. Balch, 136 Mo. 103, 37 S. W. 808; Underhill on Evidence (3d Ed.) section 154.
So there was no error in the admission of the Blue Moon incident.
The evidence shows that Galesburg, Illinois, is about 40 miles out of Burlington. Everybody knows that Illinois is across the Mississippi east of Burlington. So the courts know that, and have the right to take judicial notice of it. The courts of this state may and do take judicial noticе of the distances between cities in this state and the direction of one from the other, and that Burlington is something over 200 miles southeast of Des Moines, thus making Galesburg over 240 miles from Des Moines. The theory of the state in offering testimony as to the Blue Moon and Arcadia incidents is that defendant left Des Moines carrying with him, and bringing back to Iowa with him, the shotgun with which Capt. Sauer was killed, as well as one or more blue steel revolvers. It was not the hunting season; there was no need for a shotgun, especially for the variety carried by defеndant. He was at the Blue Moon about midnight of May 25th, and at the Arcadia in the evening of the 26th; and he was in and about the vicinity of Burlington all that time. By “vicinity” we mean close, for in these days of automobiles one who was at Galesburg, in point of time, was within two miles of Burlington, compared with one trudging along on foot in the days before automobiles. It was possible the theory of the state was that he went out on an unlawful expedition armed as he was. He was one of these modern bandits, picking up everything he could pick up. The theory, he did not stay around in the vicinity of Burlington, but came home, involves his returning to Des Moines after midnight of the 25th and then going back to the Arcadia by the evening of the 26th, and then into Burlington at 5:20 on the morning of the 27th. Such an assumption would be absurd. The evidence was admissible to show what the defendant was doing; that he had no legitimate mission there; and that he had the gun with him. Men who go armed as defendant was armed, with such deadly weapons, not showing any legitimate purpose, should not be permitted to be immune from having their doings shown for the purpose of identification of the persons and arms, their lingering about the scene of the crime, with no shown legitimate purpose. Of course men charged with a crime have rights. So does the State in its efforts to suppress crimes have rights. It has the right to identify the defendant as having been seen where he was, in a position to commit the crime, and as having been armed with the weapons used in the committing of the
The trial court ruled on this matter during the trial, and in instruction 20 told the jury that “all testimony of the witnesses Gall and Daughterty (who were witnesses to the Blue Moon incident) is withdrawn from your consideration, except that part of such evidence relative to the description and appearance of the persons and objects testified to by such witnesses and the time and place testified about.” So, if there were any error in the admission of this testimony, the instruction of the court cleared that up. But we say there was no error originally in this case.
We think the trial court went further in this than he should. We see no reason, under the authorities cited, why the testimony of what took place there, i. e., the circumstances under which the Blue Moon holdup was made, and the defendant was identified as being in it, was not entitled to go to the jury; perhaps not in its detail, but as a part of the circumstances under which the witnesses saw the defendant.
Neither was there error in the admission of the dying statement of Capt. Sauer. The evidence shows he had a sense of
The admission of testimony of the conduct of the defendant at the time he was first accused of the crime was not objectionable. In fact, the rule is, the conduct of the defendant when he is accused of the crime is admissible. 16 C. J. 549, section 1057, says:
“At least in so far as they tend to connect him with the crime and are not merely self-serving, the conduct and general demeanor of the accused after the crime, his language, oral and written, his attitude and relations toward the crime, and his actions in the presence of those engaged in endeavoring to detect the criminal are always relevant, whether part of the res gestae or not.” This text finds support in State v. Beckner, 197 Iowa 1252, 198 N. W. 643; State v. Pratt, 20 Iowa 267.
A great deal of comment is made by the defendant‘s attorney on the unfair argument of the county attorney. We have looked the record over very carefully, and, from the way the trial was conducted as disclosed by the record, the conduct of the county attorney was no more to be criticized than was the conduct of the defendant‘s attorneys in constant provocation, and in “side bar” remarks passed across the table. However, there is no record of whether or not whatever it was complained of was not said in answer to arguments of defendant‘s attorneys. The trial court heard all this; it was under the court‘s control; these questions that were raised were overruled by the trial court, and we think properly. In State v. Sale, 119 Iowa 1, on page 5, 92 N. W. 680, 681, 95 N. W. 193, the court says:
“We are compelled to admit that portions of the argument, as quoted by counsel from the record, seem intemperate and unnecessarily violent in their character; but we have not in the record the argument of the counsel for defendant in addressing the jury, and have no means of knowing to what extent the argument of the prosecuting attorney was justified or excused by the presentation of the defendant‘s case.”
State v. Cameron, 177 Iowa 379, 158 N. W. 563, lays down the rule that it will be presumed, nothing appearing to the con-
The defense herein was wholly in the nature of an alibi. Evidently, of course, if the defendant was in Des Moines, he was not in Burlington at the time Capt. Sauer was shot. But that he was in Burlington the morning of the 27th of May is shown by the several witnesses who saw him there; that he was at the Arcadia, a few miles out of Burlington, at least three witnesses testified to; and that he was at the Blue Moon is equally well verified. All this testimony goes to show he was in the vicinity of Burlington during that time. So, necessarily, there was a conflict in the evidence between the State and the defendant. The jury had the right to believe the State‘s witnesses, and it evidently did believe them. An alibi is an affirmative defense; the burden of proof is upon the person setting up an alibi to prove it by a preponderance of evidence. Of course, if the whole record raises a reasonable doubt of his guilt, he may be found not guilty. The instructions in this case in regard to the alibi did not go as far as such instructions many times rightfully go. The court might very well have told the jury, in addition to what he said about an alibi, that the evidence of an alibi should be scanned with caution; that it is a defense easily manufactured. State v. Blunt, 59 Iowa 468, 13 N. W. 427; State v. Rowland, 72 Iowa 327, 33 N. W. 137; State v. Worthen, 124 Iowa 408, 100 N. W. 330; State v. Leete, 187 Iowa 305, 174 N. W. 253; State v. Cartwright, 188 Iowa 579, 174 N. W. 586. But the court refrained from telling the jury this.
We have not noticed everything argued here. To do so would extend this opinion way beyond the limits any opinion should be extended. We have, however, examined all the questions raised, and find none in which there is any possibility of error. We have examined the record without regard to technical errors or defects, which do not affect the substantial rights of the defendant, and finding nothing that denies the defendant any of the rights he is entitled to, and seeing from an examination of the record that the trial was fairly conducted before an able and experienced judge, and with the further fact that in our opinion the jury could not very well have rendered any other verdict than the one it did, the decision is therefore affirmed.—Affirmed.
SUPPLEMENTAL OPINION.
PARSONS, J.—The defendant complains that the opinion as published stated that a shotgun was found at the home of the defendant. It is true, it did so state, but it was a misstatement of the facts. Howеver, it was immaterial. The opinion shows the facts relied on were, that the defendant had a sawed-off shotgun at Galesburg where he held up a party; that he was seen leaving the vicinity of the crime charged in this action, with such a gun in his hand; that he was seen to go to a parked car of the description of the car he left town in, and that the shotgun was put in this car. The sole purpose of the testimony in regard to the gun was to show that the defendant had such a gun at Burlington and shot Captain Sauer. The jury could very well deduce this fact, and undoubtedly did, from the evidence as to the gun in this case.