Gordon v. State, 3 Iowa 410

Gordon v. State

3 Iowa 410 | Iowa | 1856

Wright, C. J.

In this court, the plaintiff in error relies upon three grounds: First. That the court erred in refusing the change of venue. Second. In permitting the witness to be cross-examined as to particular instances of difficulties on the part of the prisoner, with other persons. Third. In instructing the jury that they could find him guilty of manslaughter. The question presented by the first assignment, was before this court in the case of Trulock v. The State, 1 Iowa, 515. It became unnecessary then, to determine it, however, that judgment being reversed on other grounds. It being again presented in a very similar case, we proceed to dispose of it. The Code, chapter 204, after giving the prisoner the right to petition for such change, and reciting what such petition must contain, provides, (section 3272,) “ that such court, in the exerciseofa sound discretion, may grant such change of venue; and if the same is prayed on the ground of objection to the judge, such change must be awarded to some convenient county or adjoining district; or if such change is prayed for on the ground of excitement and prejudice in the county, such change must be awarded to the nearest and most convenient county, where such prejudice and excitement do not exist.” With this discretion, we do not think we can interfere, unless it is clearly shown *413to have been improperly exercised. There may be cases in which the action of the judge will manifest an abuse of this discretion, clearly developing and establishing his prejudice, and under such circumstances, safety to the citizen, and the integrity of the law, would compel a review. Nothing of the kind is shown in this case, however. There is nothing to satisfy us, that the court below exercised any other than a sound discretion, and in such cases, we have no power to control its exercise. There is, it is true, an apparent impolicy or inconsistency, in allowing a tribunal charged with prejudice, to judge of its presence or absence. But this, if a fault, is a fault of the law, and one that we cannot remedy. This conclusion is sustained by the construction given to similar statutes in other states. Findley v. The State, 5 Blackf. 576, under the statute of 1838, which used the words, “at its discretion;' Spencer v. The State, 8 Ib. 281, under a statute which used the words, “fair and sound discretion;” Millison v. Holmes, 1 Smith, (Ind.) 55; Boswell v. Flickheart, 8 Leigh, 364; and see Humph. 154; 1 Harrington, 382, and 5 Ib. 582. The case of McGoon v. Little, 2 Gilm. 42, and Barrows v. The People, 11 Ill. 121, were decided under a statute which left no discretion in the court.

We next examine the objection to the instruction given by the court. It was held in the case of Benham v. The State, 1 Iowa, 542, that under an indictment for maiming or disfiguring, the prisoner might be convicted of an aggravated assault and battery; referring to the Code, which provides that a defendant may be found guilty of any offence, the commission of which is necessarily included in that which is charged in the indictment. Section 3039. This rule, we think, is decisive of the question here presented. The prisoner was indicted for the crime of murder, and under such an indictment, we have no doubt but that he may be found guilty of any offence necessarily included in that charged. That at common law, the defendant might have been convicted of manslaughter, where the indictment was for murder alone, is not denied; and with what show of reason it can be claimed that this rule’is changed by the Code, we cannot *414perceive. "We are referred to § 2918, which provides that on an indictment for a public offence, admitting of different degrees, the defendant may be convicted of such offence, or any degree lower than that charged in form in such indictment. And in connection with this, counsel cites sections 2569, 2570 and 2571, which define murder in the first and second degrees, and require the jury upon the trial of an indictment for murder, if they find the defendant guilty, to inquire and by the verdict ascertain, whether he be guilty in the first or second degree. The argument attempted to be drawn is, that these directions or requirements are restrictive upon the power of the jury, and that they cannot proceed further, and inquire whether any other offence has, or has not, been committed; but that under an indictment for murder, the prisoner must be acquitted, unless the crime in the first or second degrees, is sustained jjy the proof. In this construction we cannot concur. If this view, is correct, then section 3039 has no meaning, when applied to an indictment for murder. The other view, gives significance to section 2918, and recognizes the right to convict for any offence in the second degree, though the indictment in form charges it in the first degree alone. And it also gives force and meaning to section 3039, which refers not to different degrees of the same offence, but rather to a state of case where the proof shows the commission of an offence necessarily included in that charged, though it may not be a different degree of the same offence. As to this particular offence, for instance, while homicide is the genus of murder, manslaughter is a species; and by section 2918, there may be a conviction of the second degree, when the first alone is charged; and under section 3039, there may be a conviction for the species, (manslaughter), or any other offence necessarily included in the charge of murder. On this subject, see the following cases, decided upon statutes containing similar provisions: State v. Fleming, 2 Strob. 464; King v. The State, 5 How. (Miss.) 730 ; Watson v. The State, 5 Miss, 497 ; Plummer v. Same, 6 Ib. 231; and Bishop’s Cr. Law, § 538.

It only remains to inquire, whether it was correct to per*415mit the state, on cross-examination of a witness who was called as to the good character of the defendant, tq go into proof of particular acts or difficulties on his part ? And in permitting Jhis, we think the court erred. It is true, that in the cross-examination of witnesses, the court in the exercise of its discretion, may permit great latitude, but we apprehend that it cannot be so far exterfded, as to allow the introduction of illegal and improper testimony. The rule permitting this latitude, is rather for the purpose of testing the memory and credibility of the witness, than to enable a party to get before the jury testimony which would be inadmissible, if offered in a direct examination of his own witness. In this casé, it appears, that the defendant sought to prove his general good character, as a quiet and peaceable citizen. This he had a right to do. The prosecution then, against his objections, asked the witness if he knew of instances in which defendant had been engaged in difficulties with individuals, and the state was permitted to go into an examination of particular instances of difficulties with others. This would have been clearly improper, if offered by the state as direct testimony, and we cannot conceive it to be any less so, from the fact that it was drawn out on cross-examination. It is evidence of character, which is admissible, which of course is to be confined to the trait of character which is in issue, or, as it is expressed by some of the writers, the evidence ought to have some analogy and reference to the nature of the charge. But the evidence must be confined simply to the general character or reputation, and neither can ask questions as to particular facts or difficulties. 1 Chitty’s Crim. Law, 574; Egleman v. The State, 2 Carter, 97; 2 Russel on Crimes, (3d ed.) 704; The State v. Rentar, 15 N. H. 169 ; 1 Phillipps Ev. 469, 470, and notes, 319, 320, 321; Roscoe’s Cr. Ev. 97, 98. It is insisted, however, by the state, that though the question may have been improper, the record does not disclose that improper testimony was elicted, from the fact that the answer of the witness is not given. We think that to sustain this position in this case, would be extending the rule referred to, too far. To show that the an*416■swer of a witness to an improper interrogatory, disclosed improper testimony, it is not necessary that such answer should be set out in words. It is sufficient, if it satisfactorily appears, that he testified of and detailed matters which ought not to be inquired of, and ought not to be considered by the jury in finding their verdict. The record in this case shows, that*4he “ slate was permitted to go into particular instances of difficulties by the prisoner with others." It would be difficult to show more clearly, what was proved, without setting out the language of the witness, which we do not think is strictly necessary.

Judgment reversed and cause remanded, with instructions to award-a trial de novo.