STATE of Iowa, Appellee,
v.
Gust DROSOS, Appellant.
Supreme Court of Iowa.
*527 George A. Gorder, Sioux City, for appellant on appeal; Donald E. O'Brien, Sioux City, for appellant on trial.
Evan Hultman, Atty. Gen., John H. Allen, Asst. Atty. Gen., Des Moines, and Edward L. Samore, County Attorney, Sioux City, for appellee.
LARSON, Justice.
Pursuant to a grand jury indictment November 15, 1960, charging the defendant Gust Drosos with the crime of murder for killing George D. Pappas, and his plea of not guilty, and not guilty by reason of insanity under Section 777.18, Code of Iowa, 1958, I.C.A., a trial by jury was had and defendant was found guilty of murder in the first degree. He was sentenced to imprisonment in the Iowa State Penitentiary for life. From this conviction and sentence he appeals.
This record discloses that George D. Pappas was an attorney for the estate of William Drosos, defendant's brother, that defendant contested his brother's death-bed will, that Pappas was a witness in support of the will, and that subsequent to a final decision of this court in the contest Pappas advised defendant that he had lost. When so informed in church on Sunday, September 4, 1960, defendant rejected that conclusion and told Pappas, "I will come to your office sometime this week." He came on Tuesday, but Pappas was in court and he *528 left. About 8:30 the next morning he was back, armed with a knife and a revolver. Pappas was sitting behind his desk counting some money and when he "didn't agree with my questions or answers", defendant stabbed Pappas in the stomach. Pappas fled into the hall and fell in an attempt to reach a doctor's office. Defendant followed and, in front of witnesses, shot him as he lay on the floor. After retrieving his five-inch blade boning knife, defendant disposed of it in a trash can where it was later found by the police, and still later became an exhibit herein without objection. He then proceeded to the police station, told of his deed, and surrendered the revolver. Pappas died on September 13, 1960, as a result of the knife wound.
Defendant relies upon six assignments of error to sustain his contention that he failed to receive a fair trial. Being somewhat doubtful of their sufficiency, counsel in oral argument asks us to carefully search the record for any other prejudicial error that might appear. This being our duty, we have done so, and find none.
I. In his first assignment defendant questions the sufficiency of the evidence to support the verdict. He contends the evidence compels a finding that he was insane at the time he committed the crime, and that due to certain alleged statements made to the jury by the prosecutor in final arguments, the verdict did not reflect his guilt or innocence of the crime charged.
It is well settled in this jurisdiction that in a criminal prosecution the question of defendant's mental competency is for the jury if there is a material conflict in the testimony State v. Brewer,
Defense evidence of insanity was given by Dr. Carroll Brown, a physician and surgeon specializing in brain or neurological surgery, and Dr. Gerald Rausch, a physician specializing in neurology, psychiatry, and electro-psychiatry. They testified as to certain physical ailments afflicting defendant, including high blood pressure, a malignancy of the throat being treated at Iowa City, and a stroke suffered in 1949 affecting his speech and memory due to brain damage. Mentally he was disturbed about the will contest. Neither doctor felt able or competent to express an opinion as to appellant's mental condition at the time of the crime, some months prior to their examination of him. Neither testified that defendant was unable to comprehend the nature and consequences of his act or that he was unable to distinguish right from wrong. Dr. Rausch said the stroke left him abnormal, that he had lost his ability to have "feeling" and "emotions", that he had paranoid trends with impaired judgment and that it was not curable. He felt persecuted and blamed it all on Pappas, and was a borderline mental deficient. Dr. Brown was not impressed with anything unusual in his behavior or in the manner in which he spoke, which was calm and cordial. It is true the doctor found defendant believed Pappas helped execute and administer a will which deprived him of sums he claimed were his and which he expected to receive from his brother's estate, that Pappas helped put him out of "my own house" located on lands willed to his brother's widow, that he charged Pappas with robbing him, that he believed he was being persecuted by Pappas, and that he believed his act was in "self-defense". The state contends this evidence did little more than indicate a motive for the killing, and was certainly not conclusive as to his inability to comprehend the nature and consequence *529 of his acts, the sanity test we apply in this state.
The state also produced testimony of the police tending to show that defendant knew his acts at that time were wrongful, that he appeared normal, and that immediately after the attack he went to the police station "because that is the law." Others who knew him testified his appearance and demeanor immediately after the assault were no different than they had been for the past twenty years, and that his speech impediment was due to a lack of education and had not changed in recent years. The testimony taken as a whole, we think, discloses a material and substantial conflict in the evidence.
Furthermore, defendant himself took the stand and the jury observed his conduct, appearance, speech and demeanor. We being satisfied that there was a substantial conflict as to his sanity at the time of the crime, the jury-finding that he was not innocent by reason of insanity is binding upon us. State v. Berry, supra,
Under this assignment defendant also complains of a statement allegedly made by the county attorney in his argument to the jury to the effect that if defendant were found not guilty by reason of insanity he would go free and walk the streets. While it may be true such a statement would be improper and, if true, might well be such misconduct as to justify a reversal, such misconduct to be considered on an appeal must be preserved by a timely objection and proper exception. It cannot with certainty now be considered a record of misconduct. State v. Berry, supra; State v. Walker,
In State v. Williams,
Such a holding, of course, does not affect the rule that a finding of innocence by reason of insanity requires acquittal. It is simply that we cannot interfere if the record fails to show the statements made in the challenged argument. Here they were not recorded or preserved. However, the record does disclose no objection was made to any such statements at the time, and recites a denial by the county attorney when the motion for a new trial raised the question for the first time. The matter, therefore, is not subject to review by us in this appeal.
II. In his second assignment of error defendant contends the trial court improperly excluded testimony of a state's witness in cross-examination. While the extent of cross-examination is largely left to the sound discretion of the trial court (State v. Davis,
As a general rule the admissibility of testimony from a preliminary hearing or former trial rests upon the unavailability of the witness whose testimony is introduced. State v. Brown,
On cross-examination Detective Warnstadt was asked if he heard the questions *530 and answers given by defendant at the preliminary hearing. The state objected on the grounds that it was irrelevant, incompetent, hearsay, and not the best evidence because it asked about testimony the defendant necessarily present at this trial gave at the preliminary hearing. By way of explanation defendant offered to show defendant had stated in Warnstadt's presence, in answer to the question, "And you were going to kill him then?" the following: "No, no, not going to kill him. I was going to say to him, I was going to talk to him." Counsel stated it was not for the purpose of impeachment, and the court sustained the state's objection.
While it is true the defendant has the right to have his theory of the case explained to the jury (State v. Brooks,
III. The trial court overruled objections to the admission of Exhibits "6" and "2". Exhibit "6" was a spent .32 caliber lead bullet found by Chief of Police O'Keefe at the scene of the shooting a few minutes afterwards, and Exhibit "2" was a .32 caliber revolver, given to the police by defendant and later identified by him as the gun used to shoot Pappas.
Properly identified articles found at the scene of the crime which tend to show its commission or the manner thereof, or explain some related matter in issue, are admissible in evidence for jury inspection. State v. Christie,
The relevancy of such demonstrative evidence is usually a question to be determined by the proper exercise of the trial court's discretion. State v. Christie, supra; 2 Wharton's Criminal Evidence, 12th Ed., § 673.
Chief O'Keefe testified he arrived at the scene of the shooting shortly thereafter, found the spent bullet on the floor, put it in his pocket, and when he returned to the station placed it in an envelope and gave it to Bayne Linden, Assistant Superintendent of the Identification Bureau. He testified it was substantially in the same condition at the time of the trial as when he first found it. Officer Linden testified he received the bullet from Chief O'Keefe and it was in his possession, locked in a special place in the bureau where such objects are kept, and that it was in substantially the same condition at the time of trial as when he received it.
Captain Kumzak testified defendant came to the station about a quarter to nine of the morning of the crime, handed him a package and said, "Here's the gun, I shot George Pappas." When given to him, the gun was assembled and fully loaded except for one spent shell in the chamber. He said the gun was in substantially the same condition as when he received it, that he turned it over to Lieutenant Dik of the Detective Bureau. However, Lieutenant Warnstadt testified that it was he who received the gun from Captain Kumzak when it was delivered to that bureau, and that he gave it to Bayne Linden for safekeeping. Both Warnstadt and Linden testified it was in substantially the same condition at the trial as when they received it. Nevertheless, due to the fact that Lieutenant Dik was not called, the trial court did not admit the gun in evidence until on cross-examination *531 defendant himself identified the gun as the one he used in the shooting. Both exhibits were properly admitted.
It was stated in State v. Jones,
Defendant's further contention that Exhibit "6" was not admissible on the ground that it was not mentioned in the notice of additional testimony is also without merit. In the recent case of State v. Hill,
In this assignment defendant also contends the court allowed the state improperly to cross-examine him as to his visits to Pappas' office, a matter not specifically gone into on direct examination. On direct examination defendant told of his Sunday meeting with Pappas at church. He testified Pappas told him "You lost", and he answered "I told him back `I am not lost', and `I will come to your office sometime this week'." In answer as to why he was going to see Pappas he said, "I was going to see him to fix up the case." The state then attempted to bring out in cross-examination what later occurred when he came to Pappas' office, contending it did not contravene the provisions of Section 781.13.
In the recent case of State v. Shepard,
The defendant relies upon our decision in State v. Leuty,
Obviously here defendant's actions, in compliance with his promise to come to Pappas' office sometime that week, were relevant and material to the issue, i. e., his intent and purpose when he came to see Pappas. The events which occurred at that office on September 7, 1960, were proper subjects of inquiry, and we must agree that the trial court did not abuse its discretion in holding the matter was opened by defendant and in permitting the cross-examination thereon. The discretion of the trial court in such matters is quite broad. State v. Ragona,
IV. In his next assignment defendant contends the court erred in admitting statements *532 of the injured George Pappas made while he was awaiting the ambulance in the doctor's office. Lieutenant Warnstadt testified that when he arrived at Dr. Harrington's office, located on the same floor as Pappas' office, Pappas was lying on an examining table, in great pain, and was holding his abdomen. He said Pappas was moaning and said a few words. To the question, "And what did he say", defense counsel objected, contending no proper foundation was laid to show it a part of the res gestae, or a dying declaration. The objection was overruled, and the witness related that "He said he had been stabbed in the stomach by Mr. Drosos. He said, `For God's sake, hurry up and get a doctor", and we told him the ambulance was on the way." The ambulance arrived in about ten or fifteen minutes and took Pappas to the hospital. The record further disclosed that the witness had gone to the doctor's office in response to a call for help by the office receptionist immediately after the attack.
Declarations and exclamations of the person injured are admissible in evidence where they are so connected with the crime as to constitute a part of the res gestae, and this is true whether they incriminate the accused or whether they exculpate him. State v. Sommer,
We find no abuse of discretion in permitting this testimony for it was clearly within a period when no reasonable presumption of fabrication is plausible. The replies given by Pappas were natural declarations, spontaneously and instinctively made under the influence of the event. As such, they were properly received. State v. Sommer, supra; State v. Stafford, supra, and cases cited.
V. Defendant complains of the trial court's refusal to take the charge of first degree murder from the jury and of its failure to instruct the jury on the offense of manslaughter. The rule is well settled in Iowa that the court need not and should not instruct on manslaughter when the record reveals no element of such offense. State v. Woodmansee,
We have said many times that where a defendant has selected a deadly weapon and has had an opportunity to deliberate and intentionally uses it in a deadly manner, it is proper to submit the question of first degree murder to the jury. State v. Nutter,
We have also said if there is no testimony tending to reduce the offense below the grade of murder it is not error to refuse to submit the charge of manslaughter. State v. Leedom,
The court did submit the issue of murder in the first degree and murder in the second degree, and the jury found defendant guilty of the greater degree. There is considerable evidence of premeditation. Lieutenant *533 Warnstadt testified as to a conversation with defendant in which he stated he had decided on Sunday, September 4th, to use the knife and gun, that he had gone armed to the office on Tuesday but failed to find Pappas in, that he came back the following morning at 8:30 A.M. to confront Pappas, found him in, argued with him, and then stabbed and shot him. He testified the defendant said, "I was going to butcher him and then shoot him." The evidence abounds with defendant's malice toward Pappas. State v. Myers,
Manslaughter, of course, is the unlawful killing of a human without deliberation or malice. State v. Johnson,
Section 690.2, Code 1958, I.C.A., defines murder in the first degree as "All murder which is perpetrated by means of poison, or lying in wait, or any other kind of willful, deliberate, and premeditated killing, * * * is murder in the first degree, * * *."
It is difficult to find a case where the evidence discloses more clearly the elements necessary to maintain such a charge. We have often stated it is the duty of the jury, if it finds against the defendant, to find him guilty of the highest offense proven by the evidence. State v. Leedom, supra. The jury, in finding defendant guilty of first degree murder, rejected the second degree offense submitted. By rejecting the second degree or lesser offense, we fail to see how defendant was then prejudiced by a failure to submit manslaughter, a lesser offense than second degree murder.
We so held in State v. Troy, supra,
Also see State v. Rutledge, supra,
The rule we stated in State v. Leedom, supra, is worth repeating. We said at page 917 of
In view of this record and the fact that both first and second degree murder were submitted to the jury, we are satisfied no prejudice resulted from the court's failure to instruct upon or submit the charge of manslaughter.
VI. In his last assignment of error defendant contends he was not afforded a fair trial. Pursuant to our duty and to counsel's request in oral argument, we have carefully reviewed the record and, although we may understand his frustration, we find *534 nothing therein to indicate defendant did not receive careful and fair consideration of his contentions and his theory of the case. While he may have had some cause to feel aggrieved and to blame Pappas for his losses, yet the evidence clearly justified a finding that he was sane at the time of the attack, that he planned and executed a brutal and unmerciful killing of a human being, and that the punishment was not excessive or unusual. The judgment, therefore, must be affirmed.
Affirmed.
All Justices concur.