State v. Shelledy

8 Iowa 477

Opinion

Stockton, J.

*

The statute provides that a challenge for cause, may be taken either by the state or by the defendant; and if for implied bias, may be for the reason, that the juror has formed or expressed an unqualified opinion or belief, that the prisoner is guilty or not guilty of the offense chharged. Code, secs. 2982, 2986.

It wras sufficient cause of challenge to the juror, Eeynolds, in this instance, that on his examination as a witness, to prove the challenge as to him on the part of the state, he testified that “ he thought he had formed or expressed an unqualified opinion or belief, that the defendant was guilty or not guilty of the offense charged.” It need not appear that the opinion or belief, formed or expressed by the juror, was in favor of the prisoner, to constitute the same good cause of challenge. It is sufficient if the opinion is formed or expressed either for or against him. If in his favor, it is not claimed but that the challenge was properly allowed; if against him, the defendant has no cause of complaint, that, a juror who has formed or expressed the opinion that he is guilty of the offense charged against him, has been challenged for that cause by the opposite party.

The proof in support of the challenge having been heard by the court, the defendant objected to the sufficiency of the challenge, and to the sufficiency of the proof to support the same. The court overruled the objection, and allowed the challenge; and after the juror had left the jury-box, the defendant asked to be allowed to cross-examine him, and to have the juror recalled for the purpose of disproving the challenge, and to show his competency as a juror. This being objected to by the state, the court refused to the defendant the privilege of recalling the juror, for the purpose of such cross-examination. The question as to the propriety of recalling the juror, was within the discretion of the district court; and that discretion will not be controlled, unless it is shown to have been greatly abused. The People v. Rector, 19 Wend., 576; Law v. Merrills, 6 Ib., 280.

The juror, Bortz, was challenged by the state, for particular cause, on the grnond of implied bias, and being sworn as a witness, for the purpose of proving the challenge, declared that he had formed or expressed an unqualified opinion or belief, that the defendant was guilty or not guilty of the offense charged. The counsel for the defendant then asked the said juror, “ whether the unqualified opinion or belief that he had formed or expressed, was favorable or unfavorable to the state.” The court refused to permit the juror to answer the question, and decided that the testimony was sufficient to sustain the challenge, and allowed the same. We think there was no error in this ruling of the court. It was sufficient cause of challenge, that the juror had formed an unqualified opinion, and no useful purpose was to be obtained by allowing him to state whether the opinion was favorable or unfavorable to the state.

The defendant moved the court, that before he should be required to make his sixth peremptory challenge, the panel of jurors might be filled. Objection being made by the state, the court sustained the objection, and refused to order the panel to be filled; and there being but eleven jurors in the box, the defendant was required to exercise his right of making his sixth peremptory challenge, or waive the same. And after the district attorney had exhausted the peremptory challenges allowed to the state, the defendant challenged peremptorily one Davis, who was excluded from the jury-box, and thereupon moved the court to fill the vacancy in the panel 'of the jury, before he, (the defendant), ' should make the last peremptory challenge remaining to to him. Objection being made, the court decided that the defendant should make his last peremptory challenge from the eieven jurors then in the jury-box, or in case of failure to do so, he should be deemed to have waived the same.

The statute has provided, in civil causes, that “ after each challenge, the vacancy shall, if required, be filled before farther challenges are made.” Code, sec. 1775. There is no such provision, however, applicable to criminal causes; and it is the opinion of a majority of the court, that in the absence of any statutory direction, the mode of proceeding is left to the discretion of the district court; and unless there has been a gross abuse of this discretion, there is no call for the interference of the court. State v. Potter, 18 Conn., 175. (Wright, C. J., dissenting).

In the absence of any rule of law on the subject, the majority are of opinion that the court, it is to presumed, has adopted a rule of its own, and that the same has been followed in impanneling the jury. And where this has been done, no such prejudice has resulted to the defendant, as to require a reversal of the judgment, unless the discretion of the court in the premises is shown to have been greatly abused. (Weight, C. J., dissenting.)

Exception was taken to the instructions given to the jury at the request of the state, and also to those given by the court, on its own motion, and to the.refusal of the court to give certain instructions asked by defendant. The jury were directed, that “ if two or more persons conspire together to do an unlawful act, and in the prosecution of the design, an individual is killed, or death ensue, it is murder in all who enter into, or take part in, the execution of the design. If the unlawful act be a trespass only, to make all guilty of murder, the death must ensue in the prosecution of the design. If the unlawful act be a felony, or be more than a mere trespass, it will be murder in all, although the death happened collaterally, or beside the original design.” There was no error in this direction of the court. Foster, 258, 344, 351; 1 East. P. C., 255, 259 ; 1 Hale P. C., 443, 444; JJ. S. v. Hoss, 1 Gallison, 626 ; 2 Bishop Or. Law, 626.

The direction of the court to the jury, as to what constituted manslaughter, was as favorable to the defendant as he could, in reason, require to be given. The common law definition of manslaughter has not been changed by our statute, and if the court erred, it was error on the side of the prisoner, in charging the jury, that in the commission of an unlawful act, or in carrying out an unlawful design, if the intent go no further than the commission of a bare trespass, and death ensues, it will only be manslaughter. 2 Bishop Or. Law, sec. 624, 627; The People v. Enoch, 13 Wend., 163; The People v. Rector, 19 Ib., 592.

The fifteenth instruction given at the request of the state, was as follows : “ That the declarations of the defendant, and those engaged with him in the unlawful act, are to be received as evidence of their motives and intentions, only so far as their acts arc consistent with those declarations; or, in other words, where the acts of a person are inconsistent with his declarations, the former are better evidence of his intentions than the latter.” This is but a statement, in another form, of the rule laid down by the elementary law writers, that every person is presumed to contemplate the ordinary and natural consequences of his own acts. 1 Greenl. Ev., sec. ldr. Declarations made at the time of the transaction, expressive of its character, motive or object, are regarded as verbal acts, indicating a present purpose and intention, and are, therefore, admitted in proof, like other material facts; they are parts of the res gestee. Ibid, sec. 108. But where the declaration and the act are inconsistent, if the act goes beyond the declaration, or contradicts it, the presumption of intention is to be gathered from the act, upon the plain and obvious principle, that the party must be presumed to intend to do that which he voluntarily and wilfully does in fact do^ — his acts speak louder than his words.

The court, in the twenty-third instruction, directed the jury, that if the defendant, and others, formed the design of taking the life of Wilkinson, by hanging or otherwise, and in pursuance of such design, armed, and resolved and prepared to resist all opposition, obtained possession of his body, and bound him, so as to render him helpless, and avowed their purpose to take his life, by hanging or otherwise ; that they forced him, thus bound, into a carriage, and started with him to the woods, and that while on the road, and near the river, they either cast him into the river, thus bound, or compelled him, by threats or otherwise, to jump from the carriage into the river, and permitted him to be drowned, they standing by and making no effort to rescue him, if by reasonable effort they might have done so, then' the defendant was guilty of murder in the first degree. And in the twenty-fourth instruction, that if, with the design of committing pérsonal violence upon the body of Wilkinson,but without design to take his life, they started with him, bound as aforesaid, to the woods, declaring that he should be hung, or otherwise threatening his life, and Wilkinson, from a reasonable and well groaned apprehension of violence, or loss of life, hoping to escape the threatened violence, or apprehended death, jumped from the carriage into the river, and was drowned, the defendant, and those engaged with him, standing by, and neither rescuing or offering to rescue Wilkinson, that then defendant was guilty of murder in the second degree.

This instruction is sustained by authority. In Regina v. Piits, 1 Carr. & Mar., 284, (41 Eng. Com. Law), the jury were directed, that “a man may throw himself into a river, under such circumstances as render it not a voluntary act, by reason of force applied either to the body or the mind. It then becomes the guilty act of him who compelled the deceased to take the step. But the apprehension must be of immediate violence, and well grounded from the circumstances by which the deceased is surrounded ; not that the jury must be satisfied that there was no other way of escape, but that it was such a step as a reasonable man might take.” Indifference manifested by defendant to the fate of Wilkinson, in not offering to rescue him from drowning, when by reasonable efforts his life might have been saved, was a pregnant circumstance, from which the intentions of defendant as to the deceased, were to be inferred, and from which the jury might lawfully assume that he was actuated by malice or ill will.

The court further charged the jury, that “ it was not necessary that the fatal result should have sprung from an act of commission; but if defendant omitted any act incumbent on him, from which death resulted to the deceased, if there was no malice, it was manslaughter; if there was malice, it was murder.” The proposition is sometimes stated, that where one, by his negligence, has contributcd to tlie death of another, he is guilty of manslaughter. Reg. v. Levindall, 2 Carr & K., 230. And if is no defense that the death of the deceased was caused by the negligence of others, as well as by that of the prisoner ; for if the death of the deceased be caused, partly by the negligence of the prisoner, and partly by the negligence of others, the prisoner, and all those others, are guilty of manslaughter. Regina v. Haines, 2 Carr. & K., 368.

The master of a ship compelled a seaman to go aloft, in a state of great debility and exhaustion, when ho could not go aloft without danger of death, or a serious bodily injury, which facts were known to the master, who nevertheless persisted in causing him to go aloft, and the seaman fell from the mast and was drowned. It was held, that if the jury believed that the circumstances were such, that the master must and ought to have foreseen the result, and that his conduct was persisted in from personal malice to the deceased, or from such a brutal malignity of conduct as evinced a heart regardless of social duty, and fatally bent on mischief, the defendant was guilty of murder; but if the jury believed there was no actual malice to the deceased, nor constructive malice, arising from brutal malignity, still, if the circumstances showed gross heedlessness, want of duo caution, or the unreasonable exercise of authority on the part of the master, he was guilty of manslaughter. The United States v. Freeman, 4 Mason, 505; The United States v. Warner, 4 McLean, 463 ; 1 Bishop’s Or. Law, sec. 230.

The defendant moved the court for a new trial; and, among other causes, alleged that one of the jurors, Shafer, had expressed an unqualified opinion and belief, before the trial, and before he was called as a juror, that the defendant was guilty of the crime charged against him. In support of the motion, affidavits of three persons were filed, who depose to having heard the juror, before the trial, express his opinion that defendant was guilty, and ought to be punished. The affidavit of the defendant was also put in, to the effect, that until after the trial, he had no knowledge that the said Shafer had, previously to the trial, expressed the opinion or belief, that he was guilty of the offense charged; and that the said Shafer, on his examination on oath, before he was sworn as a juror, stated that he had not either formed or expressed an opinion or belief, that defendant was guilty, or not guilty. Besides this affidavit of the defendant, there is nothing to show that the juror was examined, before he was sworn as a juror, to ascertain whether or not, he had formed or expressed an opinion as to the guilt; or innocence of defendant.

The defendant’s affidavit was not' sufficient for that purpose. The challenge is required, by the statute, to be taken when the juror appears, and before he is sworn, unless the court permit it to be taken after the juror is sworn, and before the jury is completed. Code, section 2979. If the juror had been examined before he was sworn, and upon such examination, had stated that he had not formed or expressed an unqualified opinion or belief, that the defendant was guilty or not guilty, of the offense charged, though not among the causes enumerated in the Code for which a new trial may be granted, yet if it should afterwards appear that the juror had sworn falsely, and' that he had, in fact, formed or expressed an opinion that the defendant was guilty, we think it would afford good cause for granting a new trial. But defendant, to take advantage of such fact, must show, by the record, that the juror was examined on oath, as to whether lie had formed such opinion or belief; and if it is not shown that he was so examined, it is no ground for a new trial, that the juror’s opinion was made up beforehand.

The motion in arrest of judgment, was based upon the following reasons : 1. That the court to which said indictment was presented, was not held at the place fixed by law for holding the same, at the time in the term when the same was presented. The record shows that the indictment was presented to the court, while the same was sitting at the “University building” at Iowa City, although there was tlieu a regular court-house at Iowa City, for the county of Johnson. It further shows that the said court-house was in a somewhat ruined and dilapidated condition ; that the court was first convened at the court-house, and owing to the condition of the same, adjourned to the University building. All courts must sit at the places designated for that purpose, pursuant to statute, unless, by common consent, some other place is fixed upon. Code, section 1591. Where the county is not provided with a regular court-house, and if no suitable place be provided by the county court, the district-court may direct the sheriff to procure one. Code, sections 1513, 1511.

We think the record shows enough to justify this court in assuming, that the court-house, owing to its ruined and dilapidated condition, was an improper place for holding court; and that the county court provided, for the use of the court the University building, or failing to provide any place, the said building was provided by the sheriff, for the use of the court.

2. That the court had no jurisdiction to try the defendant, because a change of venue had been granted by the court to E. M. Irish, a defendant jointly indicted with said Shelledy, and the court had directed that said Irish be tried in Scott county, before the trial of the present defendant was commenced. It is urged by defendant, that as the law requires that the clerk shall make out and certify a transcript of all the proceedings appearing upon the record of the court, which, together with the indictment, and all the papers in the cause, must bo transmitted to the clerk of the court, to which venue has been changed, (Code, sec. 3213), that no .trial of the defendant, Shelledy, can bo had in Johnson county, when it is to be presumed that the indictment has been sent to Scott county, for the trial of Irish, as the lawT requires. This court will not presume that the district court of Johnson county undertook to try the present defendant, without the indictment; and as he did not apply for a change of venue, and none was directed as to him, we think he was properly tried in Johnson county.

3. The third ground of the motion in arrest of judgment is, that the second count of the indictment is bad; that there was a general verdict of guilty, without reference to any particular count; and that the court could not render any judgment on the verdict, where there was one defective count. It will not be necessary for us to inquire, whether the second count is bad. It is not claimed that the counts are all bad. We are satisfied, that where there is a general verdict of guilty, on an indictment containing several counts, if any one of them is good, the judgment will be supported. Regina v. Ingram, 1 Salkeld., 384; Grant v. Astle, Douglas, 730 ; The U. S. v. Bowers, 5 Wheaton, 206; The People v. Curling, 1 Johnson, 322; The People v. Wiley, 3 Hill, 213 ; Hudson v. State, 1 Blackf., 318; 1 Arch. Cr. Plead. & Ev., 175 ; 1 Chitty Cr. Plead., 249.

The next assignment of error, is for the reason that it does not appear that the district court, at eaeh adjournment, during the progress of the trial, admonished the jury that it was their duty not to converse among themselves, on any subject connected with the trial, nor to form or express any opinion thereon, until the cause was finally submitted to them. It is not necessary that this should appear affirmatively from the record. It is presumed that the district court did its duty; and unless the contrary is made to appear, affirmatively, the judgment will not be disturbed.

It is the opinion of the majority of the court, that there is no error shown in the proceedings of the district court, and the judgment is affirmed.

WnieiiT, C. J., dissented upon the points indicated in the opinion, but wrote no dissenting opinion.