#### State of Iowa v. Joseph Usher, Appellant.

1 Manslaughter: evidence: statements of accused. Where a witness had testified that defendant, accused of manslaughter, had related the occurrences of the night of the homicide, it was proper to ask him if he had said anything concerning the usual conduct of deceased.

*6072 Same: conversation by telephone: identity. The testimony of a witness that he had talked with defendant over the telephone was sufficient proof of identity to take that question to the jury, and to permit evidence of the conversation.

3 Same: hypothetical questions. Where there was no evidence as to how deceased was killed except thát he was found lying on the bed with a bullet hole through his body,. a hypothetical question assuming that he was in that position when killed was not improper.

4 Same: competency of evidence. Evidence tending to establish murder will not be excluded in a prosecution for manslaughter if it bears directly upon an issue to be decided.

5 Self-defense: evidence. A person' accused of manslaughter cannot claim immunity for the killing because he was a nervous, timid man and therefore acted upon an unreasonable conclusion that the killing was necessary to his self-defense.

6 Sentence: fixing time: prejudice. Although the court pronounced judgment against a defendant convicted of crime without previously fixing the- time as prescribed by statute, still since accused had filed his motion for a new trial several days previous to his sentence, and made no further claim for error or in mitigation of punishment/ there was no prejudicial error.

*Appeal from Linn District Court.*— HoN. J. H. PeestoN, *J*udge.

Tuesday, May 7, 1907.

Rehearing Denied, Monday, December 16, 1907.

The defendant was convicted of tbe crime of man-sláughter and *appeals.*

Affirmed.

*Redmond & Stewart, Cooper, Clemans*& *Lamb,*and *Smith & Smith,*for appellant.

*Chas. W. Mullan, Attorney General,*and *Lawrence De Graff, Assistant Attorney General,*for the State.

Ladd, J.

The facts are accurately stated in the opinion filed on the former appeal. 126 Iowa, 287. But one *608circumstance need be added. The physicians testified that the bullet entered the body of William Garrity immediately below the fourth or fifth rib, and about an inch above the left nipple, and, after passing through the left lung, lodged on the left side of the eighth dorsal vertebra. The distance through the body was twelve or fourteen inches, and the ball deflected downward from three to five inches. Its course was such as to indicate that the rifle must have been aimed from above, and that, as Garrity was the taller man,' and according to defendant’s last statement, the gun was fired by defendant at a distance of five feet, it is not likely that deceased was standing at the time. This is important as tending to show that deceased was still on the bed, possibly sitting on the edge, and that there was not ground for reasonable apprehension of danger to defendant’s life or limb. The case is somewhat peculiar, involving some circumstances strongly indicative of innocence, and others apparently inconsistent with any hypothesis other than of guilt. A separate examination of the record, however, has confirmed our conclusion of the former appeal that the verdict is supported by the evidence.

1. Manslaughter evidence: statements of accused. II. Several witnesses who had testified that defendant related to them the occurrences of the night Garrity was killed were asked in substance whether he had said anything concerning any unusual conduct on the part Objections thereto were rightly overruled, as it was subsequently claimed by him that deceased, when out in the yard, had 0f Garrity, *°*called his attention to seeing things in the air, and also, in his written statements, that deceased lately had been acting oddly. The fact that this circumstance was omitted when relating Garrity’s condition prior to his death was proper to be taken into consideration as bearing on the credit to be given his subsequent story. The questions were not objectionable as leading, as they necessarily called for negative testimony.

*6098. Same: byteiepifone: identity. III. One Gibney testified: “ I talked to Usber over the pbone to Spicer’s.” He was then asked: “You may state what, if anything, defendant said to you, and what he answered.” This was objected to as incompetent, irrelevant, and immaterial and because defendant could not be bound by a statement made over a telephone; the means of identification being indefinite and uncertain. The objection was overruled, and the witness answered: “ To the best of my knowledge I supposed it was Mr. Usher.” Evidently he was undertaking to answer the objection, instead of the question, and was asked: “ What did he say ? ” The same objection was repeated several times and overruled, and the witness testified that, among other things, they discussed the propriety of calling the township trustees. The court’s rulings are vigorously assailed on the theory that the defendant was not identified as the person at the other end of the line. The testimony of the witness that the talk was with Usher involved an identification of him by the sound of his voice. This was confirmed by his subsequent statement, not in response to the question, that in his best judgment he supposed the person with whom .he talked was Usher. There was no cross-examination on this subject, and, as the witness affirmatively asserted that the conversation was with defendant, we think the identification sufficient at least to carry the question as to identity to the jury. That the conversation occurred is strongly confirmed by the testimony of Spicer and Donahue. The latter, after saying that he had heard a conversation over the telephone, was asked, “ Did you hear the defendant talking over the phone that night ? ” and, over objection similar to that above, answered, “Yes; If I had to say anything I would say, *‘*Yes.’ ” He was then allowed to recite a conversation between defendant and Gibney as detailed by the latter. The record does not indicate the cause of the witness’ reluctance to answer. Eor all that appears, it may not have been owing to any doubt *610as to identity. At any rate, tbe identification was such as to justify tbe admission of bis testimony. Tbe doubt as to identity in both’instances is mere matter of inference, and, undeveloped by cross-examination, not sufficient to justify tbe exclusion of tbe evidence. See *Shawyer v. Chamberlain,*113 Iowa, 743; 3 Wigmore on Ev. section 2155.

3. Same: questions!*1 IV. In one of tbe bypotbetical questions the state assumed that deceased was lying on tbe bed sleeping or awake, and objection was made that this assumed a fact not proven. At that time no evidence bad been introduced as to how be bad been killed^ save that be bad been found lying on tbe bed with a bullet bole through bis body. Somebody must have fired tbe ball, and, in tbe absence of any proof of bow this happened, bis condition, save when found, was rightly left uncertain.

4. Same: of’evfdSce. But it is said that tbe inquiry was not permissible, as it assumed deliberate and premeditated murder, when tbe accused was on trial for manslaughter only. Tbe inquiry bore directly on tbe issue of self-defense, and, as tending to show that tbe shot could not have been so fired, tbe evidence sought was admissible, even though inierentially assuming that the crime might have been greater than manslaughter. Tbe mere fact that evidence may tend to establish murder will not require its exclusion in a trial for manslaughter, if it bears directly on tbe issues to be decided. If tbe defendant killed. deceased without provocation, as tbe jury might have found, in view of bis contradictory statements and tbe course of tbe bullet, he must have been convicted of manslaughter, for this was included in tbe higher crime of which ha bad been acquitted on the first trial. In other words, it was open to tbe state to show either that there was no provocation, or that, there being such, it was insufficient to justify the shooting, and any evidence tending to establish either of these issues was admissible.

Tbe objection to tbe cross-hypothetical question pro*611pounded to Dr. King was rightly sustained, .as the evidence then before the court did not tend to sustain all the facts recited. Other rulings on the admissibility-of evidence are so manifestly correct or without prejudice, if erroneous, as not to call for discussion.

5. Self-defense : evidence. Y. The court gave the usual instructions concerning the issue of self-defense. Counsel insist that, as defendant was a nervous, timid man, he should not be held to the exercise °f ordinary prudence and courage in determining whether his life or limb was in danger, but merely to such a degree of courage and prudence as like persons ordinarily exercise. This contention first appeared in *State v. Thompson,*9 Iowa, 198, and was explicitly answered and repudiated in *State v. Sterrett,*68 Iowa, 76, followed in *State v. Archer,*69 Iowa, 420. The instructions were correct.

6. Sentence: fixing time: prejudice. VI. The verdict was returned prior to May 19, 1906, when a motion for a new trial was filed, which on the 24th of that month was overruled. On the same day, without previously fixing the time, defendant was sentenced, ibis was contrary to section 543*1*of the Code, requiring the court to fix the time of pronouncing judgment in advance and at least three days after verdict if the court continues in session that long. The object of this section is to afford defendant ample time to prepare his application for new trial. *State v. Marvin,*12 Iowa, 499. And, as it is mandatory in form, it cannot be disregarded, save upon a clear showing that defendant has not been prejudiced. *State v.*Watrous, 13 Iowa, 489. The defendant had filed his motion for new trial several days previous, and no claim is made that he desired to make any other showing of error or in mitigation of punishment. The record, therefore, rebuts any presumption of prejudice arising from ignoring this provision of statute. *State v. Stevens,*47 Iowa, 276.

The judgment is *affirmed.*