Nash v. State

2 Greene 286 | Iowa | 1849

Opinion by

"Williams, C. J.

At tlie October term of tbe district court of Muscatine county, Henry Nash tbe prisoner was indicted for tbe murder of one Littleton J, Heddin. Tbe record shows that Nash was, at tbe time of tbe finding and filing of tbe indictment, in .custody. He at that term appeared and by bis counsel moved for a continuance of bis cause. At bis instance tbe cause was continued for trial until Tuesday tbe twenty first day of November, to which time the court was adjourned. The court at the same time, upon tbe request of tbe prisoner accompanied by a proper showing, entered an order granting leave to take tbe depositions of witnesses to be used on tbe trial of tbe cause, “ if it should be made to appear to the court that personal attendance of tbe witnesses could not be procured by proper diligence.”

It was also agreed, by the defendant in person, that tbe regular panel of jurors of that term might be discharged, and that tbe judge might issue an order to tbe sheriff for the summoning of a jury for tbe trial. Tbe prisoner by bis counsel then filed in tbe clerks office bis notice and interrogatories in accordance with tbe statute, to take the depositions of witnesses. Tbe record also shows that tbe cause was not tried on the .twenty first day of November 1848, that being the day to which tbe court bad been adjourned; but on tbe twenty eighth day of that month the court commenced its session for the trial. On that day Nash the prisoner filed among the records of the cause, his written acknowledgment that the trial had been adjourned from the 21st until the 28th of November, at his request and for his own benefit. On the 28th day of November 1848 the prisoner was duly arraigned, and put in his plea of “ not guilty.” The jury was impanneled and qualified, the parties heard and the prisoner found guilty oí manslaughter. After the rendering of the verdict, the counsel of the prisoner made a motion to arrest the judgment, which was overruled by the court, and sentence pronounced.

Several bills of exceptions, during the trial, were taken to the ruling of the court, within which all the points of law, relied on by the counsel for the prisoner, are set forth: and on which, it is urged here, that error is manifest in the proceedings of the court below.

The following errors are assigned :

1st. The indictment does not clearly charge that the beating aud wounding were feloniously done: nor that the killing was unlawful.

2d. The wounds are not described. The time of the death is not sufficiently set forth. The conclusion is bad.

3d. The indictment is not made up of charges and specifications, as is required by statute; nor is an indictable offense so clearly charged therein that a judgment can be given thereon.

4th. The indictment charges that the offense was committed on board a steam-boat in Scott county, which boat afterwards passed through the county of Muscatine. The statute gives no jurisdiction in such state of facts to Mus-catine county.

5th. The depositions of witnesses were read by the state.

6th. Judgment was against the defendant, when by the law of the land there should have been no judgment.

7 th. There was no court in session when the pretended trial was had.

The first assignment of error is that the charge of the offense therein is defective. “ That it does not allege the beating and wounding to have been done feloniously, nor that the killing was unlawful. The first count in the indictment charges that “ Henry Nash to wit: on the 14th day of September in the year of our Lord eighteen hundred and forty eight, in the county of Scott, in the state aforesaid, wilfully, feloniously, and with malice afore-thought, with force and arms did make and assault upon one Littleton J. Reddin, then and there being in the peace of the state, and him the said Reddin, did beat bruise and wound upon his head, with an iron bar of which beating, bruising and wounding the said Reddin afterwards, to wit: on the eighteenth day of the same month of September in the aforesaid county of Muscatine, did die,” and then concludes with the averment “that the said Henry ' Nash, in manner aforesaid did feloniously, wilfully, and of his malice aforethought commit the crime of murder against the peace &c., and contrary to the form of the statute in such case made and provided.”

The second count sets out the time and place when and where the beating and wounding occurred, adding that it happened on the steam boat Ohio Mail, “ which afterwards passed through the said county of Muscatine;” and then charges that the said Reddin on the eighteenth day of the said month of September, of the beating and wounding aforesaid at the county of Muscatine aforesaid did die. This count is concluded, also, by an averment that the beating wounding a'nd killing was done “feloniously and with malice aforethought” whereby the said Nash committed the crime of murder.

■The third count sets out the beating and the wounding as having been done on the same day as in the former counts, and that the said Nash having so beaten, bruised, and wounded the said Reddin “feloniously” and of his malice aforethought that he, the said Reddin afterwards “ died of the wounds and injury inflicted by said beating and wounding” and concludes “against the peace &c.”

It is true that in this indictment some of the terms used in setting out the charge of murder are not employed in accordance witb tbe old forms wbicb are found in tbe proceedings at common law, and under tbe provisions of some of tbe statutes of tbe old states, in like cases. There is now a prevailing tendency to simplify legal proceedings, by divesting them of superfluous verbiage and useless repetitions, wbicb can only serve to present tbe crime, so charged in awful sound and form; without giving to, or taking from it, any thing to render it more substantial or distinctive. It is, certainly, tbe duty of legislatures, and judicial tribunals, to aid in that advancement and improvement in tbe judicial proceedure of our country, wbicb increase of knowledge, by experience and education, demands. Every student must be aware of tbe great difference between tbe modes and forms in tbe legal proceedure of tbe courts of tbe olden time and those of modern date. It is most certainly true, that professors of law, and jurists, may never see tbe clay when they can dispense witb such great luminaries as Ooke, Blackstone, and their compeers; who in tbe dawn of proper civil association, arose over comparative chaos, and shedding tbe light of mighty intelligence, drawn from the supreme source of truth and justice, upon tbe confused and discordant multitude of mankind, marked out and described tbe line between right and wrong, and taught tbe means of their ascertainment. Theirs were tbe master minds, wbicb, in view of tbe wants of mankind, associated by civil compact, by erecting a mighty system of jurisprudence on principle, rendered tbe establishment of reason and right feasible among men. They, in their clay and generation, acting witb a wise reference to the onward moving, upward rising and expanding spirit of associated cvo~ ilisel man; newly modeled tbe temple of justice by dispensing witb tbe unmeaning ceremonies wbicb tbe jurists of antiquity bad prescribed for tbe observance of those who would enter its gate and take down the ponderous curtains which darkened the aisle, leading to her shrine, leaving all that was, by them, deemed necessary to support and substantially preserve tbe edifice. In our day, tbe wants of society, as we find them, in tbe advanced, and enlightened, condition of the civilized world; and the spirit, which moves in the life of educated man, admonish those who are called to minister at the altar of justice, to lay aside all mere forms and ceremonies, and at the same time carefully to preserve what is necessary, in substance, to give vitality and effect to principle. Truth and justice are living and eternal principles. To administer justice and truth, there must be appropriate system. Well defined rules of action, based on principle, cognizable by the mind of man, are essential to enable him to understand, and maintain his rights whilst in the conflict of life. In the ascertainment and establishment of j ustice, between men so far as the mode or form is concerned in presenting a charge or accusation, it should be intelligible, certain, and definite; truthfully and substantially presenting, against the accused, an offense known to, and defined by the law. In doing this, whether the definition of the offense be by common law, or statute, it is requisite that the terms of description, prescribedby the law, should be carefully observed; more or less than this, is not to be required by the courts.

In the formation of the criminal code of our state, one of the first things attempted was the establishment of such a system, as would be consistent with the spirit of the time, in which we assumed civil organization. Such being the design of our legislature, a criminal code was enacted, by which offenses against the welfare of society, and “ the peace and dignity of the state” have been defined, and the mode of judicial proceedure and practice pointed out., It is the positive duty of courts to observe and maintain the distinction which is clearly enjoined by constitutional law, so as, carefully, to avoid interference, and usurpation of power by either of the several departments of government. Indeed, to the judicial tribunals is this great conservative power confided. To them, alone, in the last resort, anust the aggrieved party look for relief. It is properly the province of the legislature to alter the common law, bj enactments deemed conducive to the welfare of tbe state. Sucb laws emanating from that body, are presumed to express tbe will of the sovereign people; and when' enacted, within the prescribed limits of the constititution, are binding as the law of the land, and must be observed. It is the imperative and only duty of the courts to expound and enforce the observance of the laws, not to enact them. Then, tested by the requirements of our statutes, defining the offense here charged, and prescribing the practice of our courts under the criminal code, does this indictment contain such “ charges and specifications” as are sufficient to justify the court in entering judgment, and passing sentence in accordance with the principles of the law of the land? We think it "does. It presents the complaint or accusation as commenced in the name of “ The State of Iowa,” in order that it may “be carried on in the name, and by the authority of the same.” The venue is laid in the county of Muscatine, as the place of jurisdictional power, where the bill purports to have been found by the grand jury. The day, on which the wound was inflicted by the accused upon the person of the deceased Keddin; the day on which he died; the county within which he died; the felonious intent and malice aforethought, with which the blow was inflicted ; the weapon used, and by which the killing was perpetrated ; the part of the body, upon which the wound was made; and the averment that the death was caused by the wound thus inflicted, with the allegation that the act was wilful and against the statute in such case made and provided, are all charged specifically in each count; except that the last count lays the offense in general terms, as having transpired in Muscatine county. Each count is concluded with-the charge, that, by the specific means and acts therein set forth, and described, the accused had, then and there committed the crime of murder. Such being the substantial ingredients, in fact, composing the indictment, how do they stand the test of legislative requirement?

The act defining this crime, declares that “murder is the'" unlawful killing of a human being, in the peace of the "United States, (State oilowa.) with malice aforethought, either express or implied.” Rev. Stat. 165, § 4.

The second section of the same aet declares that, “ the manner of the killing is not material, further than it may show the disposition of mind, or the intent with which the act was committed.”

The fourth section enacts, that “in order to make the killing murder, it is requisite that the person injured die iwithin a year and a day, after the stroke received, or the cause of death administered.”

The act entitled “An act regulating criminal proceedings,” Rev. Stat. 153, §46, provides, that “the body of the indictment shall be considered as made up of charges and specifications, and no indictment shall be quashed, if an indictable offense is, clearly charged therein; nor shall any motion be entertained, with a view to arrest, reverse, or set aside any judgment, on account of a defect in the indictment, if the charge, upon which the offense was tried, be so explicitly set forth, that judgment can be rendered thereon.”

Section forty-eight of the same act provides, that “nothing need be stated in the body of an indictment, which is not required to be proved upon the trial in support of the charge.”

This indictment declaras, that the deceased was killed by the accused Nash “feloniously, and with malice aforethought” and, substantially and distinctly avers that the act was done in violation of or “ against the statute in such case made and provided.” Although the precise term “unlawfully” is not used, still, as it is charged to have been done “against the statute &c.,” it must be taken as done unlawfully, and the use of the precise word, is not indispensable to aid the language used in the indictment, to convey the idea required by the statute as a charge to make up the crime. The statute is -the law. If the act complained of, was done in violation of it,, it was done •unlawfully.

The second assignment of error is answered by the forty-sixth section of the act regulating criminal proceedings cited above, which provides that “no judgment shall be arrested, reversed, or set aside on account of any defect in the indictment, if the charge upon which the offender was tried, be so explicitly set forth, that judgment can be rendered thereon.” There can be no mistake as to the offense here charged. All the facts necessary to constitute the crime of murder under the statute, so that judgment in accordance with the law, could be rendered, are clearly stated.

The statute only requires such facts to be stated in the indictment, as' are required to be proved on the trial. This requisition as we have shown by a statement of the contents of the indictment, has been fulfilled and substantially observed.

It is also contended and urged, for ground of reversal of the judgment of the court below, that “the time of the death of Beddin is not sufficiently set forth.” The indictment states, that the wound wss inflicted on the fourteenth day of September A. D. 1848, and, that Beddin died, in consequence thereof, on the eighteenth day of the same month, being four days after he received the wound. This for all legal purposes, is sufficiently certain, and conclusive, as to the time of his death; being within the limitation prescribed by the statute, in which the death must occur to make the killing murder.

An objection is also made to the validity of the indictment, because the wound is not particularly described. "We know that precedents are numerous in which particular description of the wound, as to length, depth and breadth, is set forth, and that they have been followed even till the present day, by some who are learned in the legal profession. Such particularity cannot vitiate an indictment; and may serve to enlarge and render it quite formidable and imposing; but as the law is now, under the provisions of our statute, this is not requisite. So far as tbe wound is concerned, it.is sufficient to aver that it was inflicted by tbe accused on tbe person of the deceased, that bis death was caused by it, and that tbe act was done within tbe jurisdiction of tbe court.

Enough has been presented, to show that the validity of tbe indictment is not successfully assailed by tbe 1st, 2d, and 3d, assignments of error, and that with reference to them, tbe judgment of tbe court is in accordance with tbe law.

It is contended, that tbe district court of tbe county of Muscatine, bad not legal jurisdiction of tbe offense, and proceedings thereon. That tbe act was perpetrated in tbe county of Scott, on board of a steamboat, and that tbe boat afterwards passed through tbe county of Muscatine. Tbe blow was given, and tbe wound, of which tbe deceased died, was inflicted in tbe county of Scott. From thence tbe boat, on which tbe parties in tbe transaction were, passed down tbe river, and stopping at tbe town of Bloom-ington, in tbe county of Muscatine, tbe wounded man, Keddin, was taken ashore, and Nash tbe prisoner, was committed to prison, there to await bis trial. He was there tried and convicted.

Here again, tbe legislature' of tbe state, foreseeing tbe possibility of such occurrence, and tbe necessity of providing for it, by convenient and positive enactment, have -prevented tbe success of such objection. JR&o. Stat. 153, § 42, provides, that “where a criminal act has been committed in one county, and consummated in another, (as where the mortal blow was given in one county, and tbe death took place in another,) tbe offender may be indicted in either county.” Tbe application of this act to tbe case at bar is too obvious, to allow of any discussion. “ Tbe mortal blow was given” in,Scott county, “and tbe death took place in” tbe adjoining county of Muscatine. Tbe statute, therefore, conferred jurisdiction of tbe case on Muscatine county.

But it is further contended, that tbe offense was committed on a steamboat, and that the boat afterwards passed through the county of Muscatine, and in such case the statute confers no jurisdiction. This objection is put upon the peculiar language of the statute relative to the commission of offenses on steamboats or other vessels, passing upon a voyage by, or through the state. Rev. Stab., 152, § 39, enacts that “ where a person shall commit an offense within this territory (state) on board of any vessel or float, lie may be indicted for the same, in any county through ■my fwrt of which, such vessel or float may have passed, m that trip or voyage.” The point made here, by the counsel for the prisoner is, that the indictment was found, md trial had in a county through which the boat passed rft&r the mortal wound was given, or the offense committed ; and therefore, the act of the legislature applying to ¡ounties, or part thereof, through which the vessel had previously passed, conferred no jurisdiction on that county.

What is the obvious intent of this act? Clearly to pre-rent the escape, with impunity, of offenders against the aw, by securing their arrest, in case of the commission of crime on vessels afloat within the jurisdiction of the ■¡tate. The rapidity with which steamboats move, and the secrecy of night travel on them, as well as other craft ased on the streams, required that extraordinary means ■should be resorted to, in order to prevent, detect and pun-.sh where more than common opportunity was presented :‘or the commission of crime, and escape from its punishment. To confine the operation of this section of the law :o counties, through which such boat had already passed, would in many, if not most instances of crime thus committed, thwart the evident design of the enactment, by Leaving the offending crew of a vessel, a clear and open channel to run before the law. The officer of the law, would be unable to exert his power until “ the boat had left him.” It certainly, cannot be supposed, that a special provision of this kind would be enacted for any other purpose than to extend the jurisdiction of the law, so as to secare tbe end of justice, by rendering such transient offenders amenable to the sure hand of the law.

But we think, the language of the Jaw, when fairly construed, settles this question. It expressly refers to “that trip or voyage,” meaning any county through which the vessel may have passed whilst performing her “trip or voyage.” The vessel on which the offense was committed, as the record shows, did pass on her “voyage” from Scott county, down the river Mississippi, to the county of Mus-catine where the offender, Nash, was arrested, tried and convicted. The whole proceeding was within the jurisdiction of the state of Iowa, and the boat having pass ed through a part of the county of Muscatine, within which the arrest was made, we think jurisdiction of the case was properly and legally exercised by the district court of that county, as far as this point is concerned.

The objection that the district court of Muscatine county was not legally in session when this cause was tried, and judgment given, is answered by the record. It appears, that the indictment was regularly found by the grand jury, at a regular and legal term of the court. It further appears, that the cause was twice continued, and the court as often adjourned, at the particula/i' request of the -prisoner, and for Ms benefit, by his agreement on file. It certainly is unnecessary to resort to argument, to show that the court below was not in error here. The humane indulgence of the court in granting, further time to the prisoner, who stood for trial in a capital case, when it was prayed for by the accused himself to enable him to procure the testimony of his witñesses, in defense of his life, cannot be successfully, pleaded as error, so as to affect the judgment in the case, by him. lie, cannot complain of error in a proceeding which was clearly beneficial to him, and which was had in answer to his own request.

It only remains for us to dispose of that assignment of error, relative to the reading of the deposition on part of the prosecution. The dedimus to take the depositions was prayed for, granted and taken at the instance and on be-balf cf the prisoner, and plaintiff in error here. And the depositions baring been returned and opened, by leave of tbe court, after being properly filed as a part of the case, the court allowed the prosecuting attorney to read them on part of the prosecution. To this proceeding the counsel for the prisoner neither objected nor consented. This action of the court in the case, is complained of here, as illegal; and for it a reversal of the judgment is urged. For the protection of the lights of the accused, the provision and power of the constitution is invoked, and it is claimed in his behalf, that he had a right to “ be confronted by his accusers and the witnesses of the state.” It is, most clearly, the duty of the court to guard carefully, the rights of a citizen when upon trial for high crime. It is bound to see that he has a full fair and impartial trial, under the constitution and the laws. Has he been, in this case, denied the benefit of this right? The testimony was of his own procurement. The witnesses were selected by himself, and he propounded the questions which were answered by them. At his instance, the depositions were returned and filed in the court, as part of the case, for hearing, and in order to sustain his defense on the issue joined. The evidence if relevant and material, was in the possession of the court, by his own act. It had not, in any way, been subject to the control of the prosecution, until after it was filed in the case, as the testimony of the prisoner, for his own benefit; when filed, it was in the custody of the court, as evidence in the case. We cannot see, under the circumstances, how moral wrong, or injustice in fact, could be done to the prisoner. Whether the depositions were read by the counsel for the state, or for the prisoner, could not materially affect the merits of the case. The bill of exceptions does not show that the prisoner, or counsel, offered any objection to the reading of them, by the attorney for the state, at the time; but merely took an exception to the ruling of the court in suffering them to be read. Nor does it appear, that any intention was shown, or attempt made by the prisoner, or his conn-sel, to withdraw the depositions from the files of the court or the trial of the cause. It is the mere act of reading them, by the counsel for the state, which is excepted to. Was the court legally justified in thus permitting the evidence of the prisoner to go to the jury? We think this ruling of .the court is warranted by the act of the legislature, “regulating criminal proceedings.” Rev. Stat. 160, §109, where it is enacted that “the power and practice of the courts in criminal matters, shall (except so far as herein modified,) remain the same, as they have heretofore been; and shall as far as practicable,be made to coincide with the corresponding practice in civil cases.” 'By turning to “An act regulating the mode of taking depositions, and to provide for the perpetuation of testimony” in civil proceedings, Rev. Stat. 228, §9, we find that it is provided that “all depositions taken in pursuance of this act, when returned vnto eotirt, may be read by either party, on the trial of the cause, to which they relate.” Here the legislature again, we think, has given direction to the power and action of the court in - relation to the practice in this very matter. We view the course adopted, and acted upon by the court, as in accordance with the practice prescribed by these acts taken in connexion, and fairly construed. This view of the questions contemplates this construction, and the legislative enactments on which it is put, as substantially free from constitutional objection, and working no wrong to the prisoner, by taking from him his legal rights; whilst the great designs of judicial trial, the ascertainment of truth, and advancement of justice, are attained by the court. The court below by its proceedings in the case, as it appears of record, as well as the counsel for the prosecution, seems to have extended to the defendant every opportunity of making manifest his innocence, consistent with “the law of the land,” adminis-terecl with a careful regard for the public security and weal, as well as thé rights of the accused. We see nothing in the errors assigned, which, viewed in the light of reason, justice, or law, will warrant us in interfering with tbe judgment of the district court.

/S. Whicher, for the prisoner. W. G. Woodward, for the state.

Judgment affirmed.