194 Iowa 777 | Iowa | 1922
I. The deceased, Harry Skinner, was killed on the evening of December 9, 1920, as the result of an altercation between him and the defendant, in the defendant’s store at Linby, Jefferson County. Skinner died as the result of a wound inflicted upon him by the single thrust of a cheese knife, in the hands of the defendant. Before inflicting the wound, the defendant had been twice shot by Skinner: one bullet entering his left arm, and the other entering his body at a point one inch below the left nipple. The deflection of the bullet by the striking of a rib' prevented it from entering the heart cavity. Skinner was a man 31 years of age, 5 feet 11 inches tall, and weighing 175 pounds. The defendant was shorter in stature and lighter in weight, and was 57 years of age. A few months before, he had submitted to a surgical operation for the removal of one eye. This had caused him considerable disability for many weeks. He also suffered from heart trouble in some degree. The evidence is quite undisputed that Skinner “carried a gun” ostentatiously, and was a quarrelsome bully. Nevertheless, he and Scott had been personally acquainted for many years, and had at all times maintained friendly relations, up to the moment of the altercation. Skinner owed Scott a small account. He had received a request for payment. Responding thereto, he came to the defendant’s place of business, which was a store and post office. He claimed a discrepancy of a few cents in the statement of the account, which the defendant pur
II. We have given the foregoing outline of the evidence, as a basis for the consideration of particular errors assigned by appellant. These alleged errors go to the proposition that, by' reason of certain incidents which occurred in the cross-examination of the defendant, and in the argument of counsel for the State to the jury, he was clearly prejudiced, and thereby failed to obtain a fair trial, within the meaning of the law. The defendant was a witness in his own behalf, and testified to the circumstances of the homicide. He also testified to the fact that he was born in Jefferson County, and had lived there all his life, except for seven years when he lived in the state of Arkansas. He had been postmaster of his town for five years, and was the proprietor of the store in which the tragic event occurred. He also testified to his acquaintance of several years with the deceased, and of his knowledge of him as a quarrelsome fighter. Complaints are directed to certain features of his cross-examination. Some of these are not tenable; some of them are. His cross-examination opened as follows;
“Q. Now it is a matter of family history that you were named after the confederate general Robert Lee,- in 1864? (Objected to as immaterial and prejudicial. Sustained.) Q. Now
Appropriate objections were made to the foregoing, some of which were sustained and some overruled. The foregoing questions were not predicated upon anything in the defendant’s examination in chief; nor was there any basis therefor in the State’s evidence in chief or in rebuttal. No other inference is permissible than that they were intended to'create in the minds of the jury an impression that the alleged facts inquired about existed.
These lines of inference were followed up with undue diligence in the arguments for the State to the jury. Counsel for the State said:
“Scott says his father settled in that community in 1843. I don’t remember that far back. I do know that, in 1864, that being' the year Scott says he was born, that from this county, my father and his two brothers had enlisted in the Union army, to suppress the great rebellion against our nation. I do know that the great general leading that rebellion was Robert E. Lee, and that in 1864, in the midst of that great war, this Robert Lee Scott was born, out here in Iowa.”
The 'defendant did not put his character in issue. No character witnesses were offered by either side. In argument to the jury, the attorney for the State said:
“Now the law permits this man to prove his good character
Also the following:
“I don’t believe, gentlemen, that, when Mr. Scott deeded every dollar’s worth of property he had under the sun to his wife on the 16th day of December, that he didn’t have a conscious knowledge that he had not only violated the state laws, but had damaged the widow and the children of this man, Skinner. ’ ’
The following also:
“But now, mind you, Harry Skinner hadn’t a bit of reputation left, after that meeting in Starr & Jordan’s office last Friday, — not in the minds of any one of these witnesses; not in the mind of Doc Henry; not in the mind of Doe Wiley; not in the mind of Fray, Bender, Joe Slater, Gus Fray, and Bffie Fray,- — every one of whom went up there and attended that convention; every one of whom got up and said their little speech in the presence of each other, so that they all would know what the others were going to testify to. I can appreciate, 'gentlemen, how it may be convenient — it may be necessary — for counsel to know something about what the witnesses are going
The remarks of counsel which are quoted in the foregoing were all gratuitous, and not based upon the evidence. The impropriety of them and each of them is readily apparent, and we see no occasion to discuss them in that regard. What amounts to prejudicial misconduct is not easily defined, with any particularity. Perfect procedure or perfect argument is a practical impossibility. In the consideration of such a question, we will look into the whole record, in order to determine whether unwarranted conduct was probably prejudicial. If a case were close and doubtful in a material respect, and if the unwarranted conduct is calculated to obscure the point and to deflect the minds of the jury away from it, rather than to invite candid consideration of it, we must, of course, find prejudice more readily than otherwise. We see no way to lay down a hard and fast rule, to determine when misconduct in argument or when examination of witnesses is prejudicial. Upon a consideration of this record as a whole, we are united in the view that it was prejudicial, in that it did prevent the defendant from having a fair trial. Sinister references,- either by cross-examination or by argument, to a supposed event, in a remote time and place, leave the defendant quite defenseless, even if evidence were readily available, in addition to his own, to- disprove them. The court, in the interest of orderly trial, could not and should not permit such a chase to be taken up. The matters which we have above quoted were all calculated to inflame passion and prejudice against the defendant, quite independently of the proven facts of the case. There could have been no other motive for resort to them.
We reach the conclusion that defendant’s motion for a new