160 Iowa 388 | Iowa | 1913
On the 24th day of November, 1911, the grand jury of Scott county returned an indictment against the defendant, charging her with the crime of murder in the first degree. Defendant being arraigned and a plea of not guilty having been entered, the cause was tried to a jury, and the defendant found guilty of manslaughter. Motion for a new trial was made and overruled, and judgment was entered upon the verdict. From this judgment, the defendant appealed to this court.
Defendant assigns as error:
First. That the county attorney in his closing argument to the jury, was guilty of misconduct.
Second. The court erred in not sustaining defendant’s motion for a new trial, based upon the misconduct.
Third. That the court erred in the admission of testimony.
Fourth. That the court erred in instructions given, and in refusing to give instructions asked by the defendant.
The defendant sets out in his printed argument, in substance, what the testimony showed, and this is by the plaintiff’s attorney conceded to be practically all the evidence submitted to the jury.
The evidence is that the defendant left the home of her mother, where she was living, on the afternoon of October 30, 1911, the day of the alleged crime, at about 2 o’clock in the afternoon, having a revolver in her possession belonging to her sister; that she came by way of the street car down to the business section of Davenport and was seen at a five and ten cent store and walking about the streets; that about, five o’clock she was seen by Ed. Kilduff, brother of the deceased, standing in the doorway near the entrance to the fish market, where deceased was working; that it was raining at this time; that, as Ed. Kilduff came out of the fish market, she stopped him and asked him to tell her husband, the deceased, to come out; that she was told he was not there; that she refused to believe this and said that she would go and
As bearing upon defendant’s mental condition at the time and the causes thereof, the evidence is that the defendant and John Kilduff, the deceased, were married in 1907, when the defendant was about seventeen years of age; that at the time of said marriage the defendant was pregnant by a man named Kuehl, to whom she was engaged to be married, but who was drowned shortly before the marriage was to have taken place; that her husband was informed as to her condition previous to the marriage and stated Ms willingness to marry her, notwithstanding her condition, and expressed sorrow for her; that said marriage took place July 20, 1907; that a child was born to defendant November 4th following;
The evidence further shows that the defendant as a child was able to make little progress at school; that her father committed suicide while insane; that she has a brother who is weak-minded, and has been an inmate of the State Institution at Glenwood; that upon the date of her arrest for the killing of her husband her conduct and appearance was such
The statute provides: “Either party may take an exception to any decision or action of the court, in any stage of the proceedings, not required to be and not entered in the record book, and reduced the same to writing, and tender the same to the judge, who shall sign it if true, and if signed it shall be filed with the clerk and become a part of the record of the cause; if the judge refuses to sign it, such refusal must be stated at the end thereof, and it may then be signed by two or more attorneys or officers of the court or disinterested by-standers, and sworn to by them, and filed with the clerk,
As stated before, the bill of exceptions here presented for our consideration was signed by the two attorneys representing the defendant in the cause and in this court. That this is not a sufficient bill of exceptions to enable us to review matters therein complained of, see Simon v. Weigel, 10 Iowa, 505, and it might be remarked in passing that, at the time this decision was made, the statute was substantially the ‘same as it is now. In this decision the court said: “It is quite clear that to permit the attorneys of the party excepting to certify as well as to draw their own bill of exceptions, . . . and thus manufacture a record to suit themselves, would be to establish a privilege liable to very great abuse, to say the least, and therefore could not have been within the contemplation of the law. ’5
In the above ease, the attorneys for the parties taking exceptions certified to the same after the judge refused to do so. See, also, St. John v. Wallace, 25 Iowa, 21, wherein the same doctrine is affirmed, in which it is said: “As we read and understand the record, one of the persons signing the exceptions was defendant’s attorney on the trial, and, upon the authority of Simon v. Weigel, this is not allowable. In that case we refused to permit a bill so signed to be made a part of the record. It would follow, of course, that, though sent up, it should be rejected.”
It is next contended that the court erred in admitting certain testimony bearing upon the question .of the sanity of the defendant at the time of the commission of the act in question, and it is said in argument that the opinion of a witness on the matter of insanity is not admissible unless all the facts upon which the opinion is based are testified to and the opinion is limited to the facts upon which the opinion is based, as stated to the jury.
Mrs. Zimmerman and Gfus Zimmerman, both called to testify as to the sanity of the defendant, said they lived next door neighbor to her for six or seven years. Lived about two hundred feet from her, and had occasion to see and speak to her. He said she was sane. She said, “I think she was sane.”
The questions complained of and the answers are practically all the same. Applying the rule above stated, we find no error in the court’s action.
On the whole record, we find no error and that the verdict is fully sustained by the evidence, and the case is therefore, Affirmed.