32 Iowa 36 | Iowa | 1871
On the trial the defendant offered to introduce evidence to show that McMillin, the person stabbed, was a large, powerful and muscular man, who, when under the influence of liquor, was quarrelsome, ugly, dangenras and vindictive; that defendant knew these facts; that, in connection with this offer, he also proposed to prove that on the same day, and shortly before the commission of the assault, McMillin had threatened to take defendant’s life, of which threat he had been informed only a few minutes previous to the assault.
The court refused to admit this evidence, and this ruling is assigned as error.
A man may repel force by force in the defense of his person, habitation or property against one who manifestly intends and endeavors, by violence or surprise, to commit a known felony on either. In such cases he is not obliged to retreat, but may pursue his adversary until he finds himself out of danger. Wharton’s Am. Crim. Law (3d ed.), éS6. And it has been held by this court that a person is not required to flee from his adversary, when assailed with a deadly weapon,, and retreat to the wall, before he can
Without expressing any opinion in respect to the sufficiency of the rejected evidence in this case, to justify the alleged assault, or even to mitigate its degree, we are of opinion that it should have been admitted to the jury, under proper instructions from the court upon the law, so that the jury, with all the facts and circumstances connected with the transaction before them, might be enabled to judge of the intent and motive of the defendant in the commission of the assault; whether to his comprehension, as a reasonable man, there was such actual and urgent danger as to justify the alleged assault, or whether it was made wantonly and without actual apprehension of danger from MeMillin.
The constitution of the State, which is paramount in authority over an act of the general assembly conflicting with it, provides that “in all criminal prosecutions, and in cases involving the life or liberty of an individual, the accused shall have the right to a speedy public trial by an impartial jury; to be informed of the accusation against him; to have a copy of the same when demanded-; to be confronted with the witnesses agamst him ; to have compulsory process for his witnesses; and to have the assistance of counsel.” New Const., §10, art. 1.
Here is a clear and express declaration of the right of the defendant -“in a criminal prosecution” “to be confronted with the witnesses against him.” This right to have them brought into court, where he can see them, while they give evidence against him, is seemed by this constitutional provision. Their testimony can be given only upon the trial of the cause, and face to face with the accused; and any act of the legislature purporting to authorize depositions of-witnesses, taken out of court,, to
When the jury returned into court, after having agreed upon their verdict, and reported that they found the defendant guilty, the court propounded to them the follow
When the jury in a criminal case have agreed upon their verdict and been conducted into court, their names must be called, and, if all answer, they are to be asked by the court or the clerk whether they have agreed upon a verdict, “ and, if the foreman answers in the affirmative, they must, on being required, declare the same.” Rev., §§ 4825, 4827. The jury may render a general or special verdict. § 4828. “A general verdict upon a plea of ‘.not guilty’ is either ‘guilty’ or ‘not guilty,’ which imports a conviction or acquittal on every material allegation in the indictment.” § 4829. These provisions of the statute contemplate that the jury, after informing the court of their agreement on a verdict, must, on being required by the court, declare the same, which may be done orally. In this case they declared that they found the defendant “guilty,” which imported a conviction of the defendant on every material allegation in the indictment. The indictment charged the defendant with an assault with intent to commit murder, hence the legal effect of the verdict was that he was “ guilty of an assault with intent to commit murder,” an affirmative answer to the question propounded by the'court.
The statute prescribes no peculiar form of words to be used by the court when it requires the jury to declare their verdict, and we see no impropriety in the form used in this case, nor that the defendant was, or could in any way be, prejudiced thereby. See The State v. Shelledy, 8 Iowa, 481; The State v. McCombs, 13 id. 426.
On the other hand, the State filed the affidavits of twenty-two other residents of the county, stating that they “believe no such prejudice and excitement exists in the county, as that a jury of twelve impartial men cannot be impaneled before whom the defendant can receive a fair and impartial trial.”
This question is one resting in the sound discretion of the court below, and when fully advised it must decide according to the very right of the matter. Rev., § 4333. The defendant could not demand the change as a matter of strict legal right,"although the prejudice be stated in the very language of the statute; and, unless the discretion conferred by the statute upon the court applied to has been abused, this court will not interfere. State v. Arnold, 12 Iowa, 479, and cases cited; State v. Ingalls & King, 17 id. 8; State v. Baldy, id. 39; The State v. Knight, 19 id. 94.
The record foils to show that there was any abuse of discretion in this .case, or that, upon the affidavits before the court, it did not decide upon the application for the change according to the very right of it.
For the errors before noticed the judgment is
Reversed.