49 Iowa 328 | Iowa | 1878
I. The indictment charges the defendant and eight others — one his father, two his brothers — with the murder of George Howrey. The defendants demanded separate trials, and upon the motion of the district attorney the defendant, whose case is now before us, was first put upon trial.. Prior to tlie election of separate trials, and of the order therefor, the defendants united in successive motions for a change of venue and for a continuance. They were both overruled.
The facts connected with the homicide, so far as they are involved in the points upon which we find the decision of tlie •ease turns, may be briefly stated:
David Howrey and Beuben Westfall were respectable farmers, residing in Warren county. They were neighbors. Howrey had two sons — George and John. Westfall had three— Benjamin, Lewis and Levi. The families for a number of years had been on terms of open enmity; quarrels, lawsuits, and more than one rencounter between members of the hostile families had occurred. In the quarrels and fights the Howreys were usually the aggressors, and probably the victors. The respective families had adherents among their neighbors and relations, so that the forces were about equal. Insults had been often given by the Howreys to the other parties, and they had made threats of violence, which were communicated to the Westfalls. Both parties, or some of both parties, finally armed themselves with revolvers, knives and slung-shots. The evidence tends to show that the West-falls were inclined to avoid meeting their enemies, and had left places of public resort, and when at school had declined to engage in play for that purpose.
With this state of feeling and disposition of the parties they
Nine of the Westfall party were indicted for the killing of Groom, and separate indictments were found against the same parties for the killing of each of the other men who fell in the fight. The evidence as to the aggressors in the fight, the arms
Numerous errors are assigned by counsel upon the record, which present objections to nearly every step taken in the case. We will find it necessary to examine but a few of them.
The court below, in an instruction, directed the jury that the evidence we are now discussing should not be considered in order to determine whether defendant was concerned in the commission of the homicide for which he was indicted. But the court adds, in the same instruction, “evidence of this character has been admitted only as tending to show that a public offense was committed, and the character of that offense, and not for the purpose of connecting the defendant with its commission. ”
Under the rules of evidence declarations of other persons, jointly charged with an offense, made after the act, are not competent against one who participated in the crime. Such declarations are regarded as any other hearsay testimony. It is just as inadmissible for one purpose as another.
The instruction quoted directed the jury to consider the evidence for the purpose of determining the character of the offense. It will be readily seen that such evidence was prejudicial to defendant. Upon it the jury may have found the crime to have been of a higher grade than they otherwise would have considered it.
IX. The defendant requested the court to give the following instruction, which was refused:
“No. 7. If, upon the entire evidence, you shall find that there was no combination or joint purpose, or action of this defendant with the others, or any of them indicted with him, then the defendant can only be held responsible for what he himself did at that time. And if in such a case you should believe, upon the whole evidence, that it is uncertain or doubtful whether the defendant, Benjamin C. Westfall, now on trial, or some other one of said defendants, struck the fatal blow upon the deceased, it will be your duty to find the defendant not guilty.”
The instruction ought to have been given. The correctness of its principles and its applicability cannot be doubted, and we find nothing in the instructions given which presents the same thought.
X. We discover no errors prejudicial to defendant in the giving or refusal to give other instructions. The questions raised by counsel upon these rulings need not be considered. Other rulings of the court need not be discussed, as the questions involved therein will not arise upon a re-triál of the cause. Because of the errors we have pointed out the judgment of the District Court is reversed, and the cause is remanded for another trial.
REVERSED.