REPORTS

OF

CASES AT LAW AND IN EQUITY

DETERMINED BY THE

SUPREME COURT

OF THE

STATE OF IOWA

AT

DES MOINES, MAY TERM A. D. 1906

AND IN THE SIXTIETH YEAR OF THE STATE.

STATE OF IOWA, Appellee, v. JoHN HAYDEN, Appellant.

Criminal law: CONTINUANCE. It was not error to refuse a con1 tinuance of a criminal cause on the ground of an absent witness, where such witness was desired for impeachment purposes and at the time the motion was made it did not appear that he would be needed; especially where the foundation for the introduction of the evidence was not laid during the trial. Murder: SELF-DEFENSE. On a prosecution for murder the evidence 2 is held insufficient to support a plea of self-defense.

Evidence of sanity. The opinion of a non-expert witness, in testi3 fying to the sanity of a person, need not in all cases be limited to the facts previously detailed.

Objection to evidence. An objection to evidence which is not 4 pointed out to the trial court will not be considered on appeal. VOL. 131 IA.-1

1

Evidence: BAD CHARACTER. The limitation of proof of a defend5 ant's bad character to the time prior to the commission of the crime is not a matter of which he may complain, since the state may show his reputation down to the time of the trial as bearing upon his credibility.

Improper evidence: PREJUDICE. A defendant who answered that 6 he had previously been convicted of a felony could not complain because subsequently asked if he was sentenced to the penitentiary, where the court sustained an objection to the question and immediately directed the jury not to consider it. Murder: PRESUMPTION OF MALICE: INSTRUCTION. An unexplained 7 killing with a deadly weapon raises a presumption of malice which will support a conviction, unless the defendant by his evidence shows a legal excuse or justification for his act. Weight and credibility of evidence: INSTRUCTION. Failure to 8 specially instruct on the question of expert testimony is not erroneous, where there was a general instruction as to the weight to be given the evidence and there was no request for further instruction on the subject.

Unused witness: PRESUMPTION: INSTRUCTION. The fact that a wit9 ness, called by the state, appeared but was not used, does not raise a presumption that he would not have given material testimony for the prosecution, and the defendant is not cntitled to an instruction on the subject.

New trial. After judgment has been entered in a criminal case a 10 petition for new trial will not be entertained.

Appeal from Decatur District Court.- HON. WILLIAM E. MILLER, Judge.

TUESDAY, JUNE 5, 1906.

INDICTMENT for murder. Verdict of murder in the

second degree, and judgment of imprisonment in the penitentiary for the term of twenty years.

Defendant appeals.

V. R. McGinnis and M. L. Temple, for appellant.

Chas. W. Mullan, Attorney General, and Lawrence De

Graff, Assistant Attorney General, for the State.

DEEMER, J.- The indictment is for murder in the first degree. That defendant shot and killed one Bracewell on the 8th day of January, 1904, is conceded; but it is contended on his behalf that his act in so doing was in self-defense, and testimony was adduced to show that defendant was insane when the fatal shot was fired. Defendant and decedent were farmers living near each other in Decatur county. On the morning of the fatal encounter deceased and his hired man, by the name of Peck, were hauling hay from defendant's land. As they left the field with the last load before dinner they noticed some cattle on defendant's land and a few upon the premises belonging to Bracewell. These cattle belonged to Bracewell. Reaching home, Bracewell and his man unhitched the team, fed them, and went into the house. At that time they noticed some one going toward the cattle as if he were trying to get around them to drive them off. Bracewell left the house and went out near a gate, apparently watching the man who was after the cattle. He thereupon had his boy get a horse for him, and Peck got another, and the two started on horseback toward the cattle, and as they approached saw the defendant. Peck was the first to reach defendant, and defendant said to him: "Do not take the cattle out. I want to see the other man first." He then said to Peck: "Don't take any offense at what I I don't mean any offense against you." To this Peck responded: "All right, Mr. Hayden. These are Mr. Bracewell's cattle, and it is you and him for it." Bracewell came up almost immediately, and Hayden then started toward the cattle. Bracewell moved off toward a haystack in the field. Hayden then left the cattle and came running back to where Bracewell was seated upon his horse. As he came he was swearing and cursing Bracewell and calling him. vile names. He had his hand in his pocket, and as he came closer drew his coat and shook his fist at Bracewell and continued his cursing. Bracewell was in his shirt sleeves and had a buggy whip in his hand. As Hayden

say.

to run.

came up Bracewell threw his whip, dropped the bridle, slid off his horse, and told Hayden that if he wished to fight all right. As he dismounted Hayden turned around and started Bracewell immediately started after him, and as Hayden ran he began feeling in his pocket. Hayden ran sixty or seventy feet, and was getting away from Bracewell, when, having secured his revolver, he whirled around and shot twice; one load striking Bracewell, resulting in his death in a few hours. When the shots were fired Bracewell had stopped his pursuit and was standing with his left side toward Hayden. The ball from the revolver entered Bracewell's left side between the tenth and eleventh rib, went through the body, and lodged underneath the skin on the other side. This, in brief, is the state's version of the affair, although defendant had another account thereof; but, as the jury returned a verdict of guilty, we should, for the purpose of this appeal, treat the case as if these facts were established.

1. CRIMINAL

LAW: continuance.

The case was set for trial on May 23, 1904, and on the 19th of that month defendant filed a motion for a continuance, based upon the absence of a witness who, it was claimed, would testify to certain statements made by Peck, the principal witness for the state, with reference to how the difficulty occurred. On the 19th of May, 1904, an order was made by the trial court for some of defendant's witnesses, and another was made on the 11th of that month. A subpoena was issued for the absent witness May 16th, and sent to the sheriff at Des Moines, where the witness resided, on the same day. Defendant's counsel were then informed that the witness had left Des Moines on the day the subpœna issued, but had been there prior to that date. The testimony which it claimed the absent witness would give was not substantive in character, and could not have been used except for impeaching purposes. At the time the motion was made it did not appear that the witness would ever be needed, and as the witness Peck was not, when on the witness stand, asked if he had made the state

ment claimed to the absent witness, it does not anywhere appear that his testimony would have been admissible, even had he been present. Under this state of facts we must assume that the witness Peck was truthful, and that, in the absence of some showing to the contrary, he would have admitted the conversation had it occurred. Defendant did not see fit, for some reason, to ask him about it, and then to renew his motion for continuance, had the witness denied it. Moreover, there is no real conflict between Peck's statements while on the witness stand and what it is claimed he said to the absent witness. The discrepancies, if any, were so unimportant as to be immaterial. Again, the showing as to diligence is not strong, and there is no reason for interfering with the discretion lodged in the trial court in such matters. At any rate, prejudice is not shown; and, under the peculiar facts of this case, it is not to be presumed.

defense.

II. It is claimed that the state did not produce sufficient testimony to show that defendant was not acting in self-defense. The statement already made is sufficient answer to 2. MURDER: self- this proposition. Further, it is claimed that the testimony shows conclusively that defendant was not responsible for his acts. This was purely a fact question for the jury, and with its finding we shall not interfere. The most that can be said in this connection is that defendant was an epileptic, but it does not appear that at the very time in issue he was suffering from an attack of that disease. Indeed, the contrary very clearly appears.

3. EVIDENCE OF SANITY.

III. Certain rulings on the admission and rejection of testimony are complained of. Nonexpert witnesses were produced by the state to give testimony in rebuttal of that offered by the defendant with reference to his unsoundness of mind. The question of which most complaint is made reads as follows: "Q. Taking into consideration your acquaintance with him and your conversation with him and his appearance and so on, what would you say as to the defendant, John Hayden, being of sound