State v. GiudiceState v. Giudice
- Reporters:
- Before:
- Ladd
Hоward Jones was employed in firing a switch engine at the yards of the Chicago & Northwestern Railway Company in Council Bluffs, and on the evening of May 27, 1913, shortly after 11 o’clock P. M., rushed into the foreman’s office in the roundhouse with his throat cut. He was excited and’ tried to talk, pointed at his throat and said, “Dago, Dago,” seized a pen and tried to write, but fell on the floor and died before the physician reached him. The defendant, who is an Italian, had been employed by the railroad company, and on May 13th previous, Jones had directed him to put a headlight reflector on an engine.- Defendant refused to do so and was tоld by Jones that unless he did, he would “turn him in to McCaw,” the general foreman. Subsequently Jones did so, and the defendant was suspended from employment. The theory of the prosecution was that defendant killed Jones in revenge. The errors assigned will be taken up- in the order argued.
*736
Appellant contends that the district court of Pottawattamie county, after having entered the order transferring the cause to Mills county, lost jurisdiction of the same, and that the portion of the order assigning the cause for trial on June 23d was without jurisdiction and deprived the defendant of a reasonable time within which to prepare for trial. While the district court of one county may not bind the court of another by entering an order with reference to the transaction of business in the other county, yet the portiоn of the order objected to had the effect of carrying to defendant notice of the time the cause would likely be called for trial, and this being true, the order of the court of Mills county, upon convening, June 23, 1913, that the trial proceed at once, was without prejudice in not affording the defendant at least the intervening time to prepare for trial, and there is no showing whatever that this did not afford the defendant ample time in which to prepare for his defense. The order directing the drawing of 30 additional jurymen was not without jurisdiction even if made in vacation; for Sec. 347 of the Code expressly authorizеs the judge,, either before or during the term, to order as many additional jurors drawn for the trial of any particular case as may be deemed necessary. See *737State v. John, 124 Iowa 230. Though the jurors of the original panel had drawn their compensation April 30th, for services already rendered, they had not been finally discharged, and we know of no reason why the jury, when temporarily excused, may not be required to return and sit in any case properly before the court and not disposed of. State v. Phillips, 119 Iowa 652. Such is the practice with grand jurors. State v. Disbrow, 130 Iowa 19. As the jurors had not been discharged for the term, they were competent to sit in the trial of any cause which it might be found necessary subsequently to try, аnd there was no error in re-summoning them for the determination of the case at bar.
Q. “And if selected as a juror you would have a prejudice against this man because of the fact that he is a member of the nationality to which he belongs?” A. “Well,.only just as a nationality, yes, sir. . . .” Q. “.And it would *738be in your mind always in tbe consideration of this case, would it not, the prejudice you entertain?” A. “Well, I would not let that hinder.” Q. “Isn’t it a fact that the prejudice that you have would be with you during all this time?” A. “Yes, sir, I think so.” Q. “And it would be in your mind during your consideration of the entire ease?” A. “It would.”
On further examination, he stated that he would not carry the prejudice in the jury box with him, would disregard and lay it aside, and that he had “no particular prejudice against defendant, and if selected as a juror would try the case fairly and impartially. ’ ’ After saying that he would continue to entertain the prejudice against the nationality, he was asked by the court:
“Do you think an Italian is entitled to a fair trial by this court?” A. “Certainly I do.” Q. “Can you give one a fair trial?” A. “Yes, sir.”
He.stated farther that he had talked about the case and spoken about tbe prejudice mentioned.
■Q. “Are you certain that you can entirely blot that (prejudice) out of your mind?” A. “Well, I don’t think I could entirely blot it out of my mind.” Q. “And you are absolutely certain that you could blot it out and remove from your mind the prejudice you say you entertain ?” A. “Well, I would not promise that; no, sir.” Q. “You would not be willing to state that you would entirely remove from your mind the prejudice that you entertain against this man because of his nationality ? ” A. “No, sir.”
The challenge for cаuse was overruled. It will be ■ observed that the juror did not indicate the nature, of his prejudice, that he entertained none against the accused personally, and that he insisted that he could accord him a fair and impartial trial. In these circumstances, the rule is quite *739well settled by the authorities that race prejudice will not disqualify the person called as a juror. In State v. Casey, 44 La. Ann. 969, the court said that “Race prejudice exists everywhere among all nations, who favor their own race and believe it is the favored and cherished race of the world. No man, because he thinks his own race superior to another, is disqualifiеd as a juror on this account.!’- In Bass v. State, 127 S. W. 1020, some of the jurors stated that they had a prejudice against the negro race socially, but not civilly or legally. This was said to have-meant “that they would not recognize negroes as companions or associates hut had no prejudice against the race which would influence or affect their action in respect to any right or rights under the law.” In State v. Green, 129 S. W. 700, objection to the juror was that he refused to drink with a negro, and it was said that the mere fact that the juror refused to put himself on a social level with the negro did not disqualify him to sit in the trial of the cause and render a fair and impartial verdict. In Johnson v. State, 130 N. W. (Nebr.) 283, the juror, on voir dive, stated that he had a feeling of prejudice against the colored race, but had no prejudice against the defendant; and the court held that the so-called prejudice against the race was simply a feeling or belief that.it was inferior to the white race, and that this fact would not affect his verdict,- saying that, “Without doubt many white men have the same feeling as did juror Manguld, but this alone has never been considered sufficient to disqualify them from acting as jurors on cases where colored men have been tried for criminal offenses.” In State v. Brown, 87 S. W. 519, the juror stated that he had some prejudice against the negro race, but that he had no bias or prejudice that would prevent him from impartially trying the ease under the law-and evidence. It was then said that “the statement of this juror as to his attitude toward the colored race must be treated as nothing more than a-notification to appellant that while he had no prejudice against him and could impartially try his case, yet, in making *740his peremptory challenges, the fact of the juror not being favorably impressed with the negro race might be taken into consideration,” adding that while “technically the juror was not disqualified, it would be more in harmony with absolute impartiality to select a panel of jurors who have no unkindly feeling toward the class to which the defendant belonged.” Pinder v. State, 27 Fla. 370, 26 Am. St. 75, often quoted as holding that race prejudice’ disqualifies a juror from sitting on the trial of a person belonging to such race, does not so hold. The refusal to permit the following question to be put to juxmrs was held error: “Could you give the defendant, who is a negro, as fair and impartial a trial, as you could a white man, and give him the same advantage and protection as you would a white man upon the same evidence ? ’ ’ Manifestly, a juror who could not give such a trial ought not to sit. In State v. McAfee, 64 N. C. 339, the defendant was a colored man, and the сourt refused to permit the following question to be propounded to a juror, i. e., whether he believed he could, as a juror, do equal and impartial justice between the state and a colored man; and for obvious reasons, the judgment of the trial court was reversed. In Balbo v. The People, 80 N. Y. 484, a juror in answer to a question said that it (Italian) “was a race that he was not particularly fond of, and did not think much of, judging irom those we have here.” And the court held that “the fact that the juror may have had some prejudice against the Italian race was not, we think, a disqualifying circumstance.” See Moore v. State, 107 S. W. 540; 17 Am. & Eng. Ency. of Law, 1131. The text is to the effect that “one should not be excluded from jury service merely because he does not like or think highly of the race to which the defendant belongs. ’ ’
The answers of the juror indicate no more than that on some grounds he did not like the Italian race, but the ground for this was not disclosed, and for all that appears, it may have been owing to a matter which did not affect in any way his obligation to accord defendant a fair and impartial trial. *741In State v. Buford, 158 Iowa 173, the proposition .was before this court, and it was held that, as the juror had no feeling or prejudice against the defendant owing to his race, no acquaintance with him and had no personal bias against him and said that he could give him as fair and impartial a trial as he could a white man, the court rightly held the juror qualified. Though of the opinion that technically no abuse of discretion in overruling the challenge for ‘cause can be said to appear, we agree with the suggestion in State v. Brown, supra, that it would have been more in harmony with the idea of absolute impartiality to have selected a jury with no unkindly feeling toward the class to which defendant belonged. This is suggested in view of another trial, which- must be accorded because of errors in other rulings.
Mr. Ware (counsel for the state): “It didn’t come from the state. ’ ’
Court: “That is a request that must be granted when made under the statute. It is not a matter of discretion with the‘court.”
The court then ordered the- jury to be kept together. Thereupon a juror said:
“Your Honor, it will cause me severe trouble in my business, to be locked up, for the present moment; I ask that whoever made that motion withdraw it.”
Court: “What was it that you want to attend to?”
Juror: “I want.to see to the running of the farm.”.
Cap ell (County Attorney) : “The state will consent to that, we do not’ ask to put them out.”
Court: ‘ ‘ The request to keep the jury together has been withdrawn and the order will be vacated and cancelled. ’ ’
The statute permits the separation of the jury at any time before the final submission of the cause to them “except where one of the parties objects thereto.” Sec. 5382, Code. Upon the request of either party, the jury must be kept together, and it is error not to do so. State v. Garrity, 98 Iowa 101; State v. Smith, 102 Iowa 656. This objection must be made to the court. State v. Smith, 107 Iowa 480. But it is the preferable practice that this be not done in presence of the jury, and that counsel avoid any allusion thereto in the presence of the jury. The presiding judge, in *743making the order, should assume the responsibility of so doing; for if this be cast on either party, the jury may feel resentful, and, even though the order be essential to a fаir trial, the announcement by counsel .that it was not at the instance of the state ought not to have been made, and the statement of the court to the jury that such a request had been made and must be granted is disapproved. But as the order was withdrawn, and the jury never confined thereunder, we are of the opinion that any possibility of prejudice was obviated. Such was the holding in State v. Walton, 92 Iowa 455.
The manifest design of the state in showing that defendant was referred to by those working about the roundhouse was to connect defendant with the exclamation of deceased. As bearing thereon, the inquiry as to whether defendant was the only one about there referred to as “Dago” was perti*744nent, as was also how many others and who were so alluded to, and we are of the opinion that the questions were not vulnerable to objection as not proper cross-examination. It may be that the name was applied to any Italians, but this did not indicate that there were any such working about the roundhouse. If there had been any such, the appellation “Dago,” as repeated by deceased, may as well have had reference to one of them as to defendant. The court erred in excluding the evidence.
The sheriff of Pottawattamie county was allоwed to state, over objection, that he moved the defendant from Council Bluffs to Atlantic, and thereafter to Logan; that he made the latter change because of the newspaper reporters having located him. It is said that the purpose of the state in introducing this testimony was to get before the jury the fact that it was necessary for the ‘sheriff to conceal defendant in order to protect him, and that unusual precautions were taken, owing to conditions, for the protection of defendant’s life, and that it tended to inflame the minds of the jury and prejudice them against him. All shown was merely where he had been since the commission of the offense, and it seems to us that it is quite a strain on the imagination to attribute the change of location to the design mentioned. As the evidence had no bearing on the guilt or innocence of the defendant, it might well have been omitted.
*746
IX. On cross-examination by counsel for defense, the record is as follows:
Mr. Capell: “Objected to as incompetent, immaterial and irrelevant.”
Court: “Sustained.”
Q. “Did you shoot a man over at Folsom by the namе of Ralph Mesena ? ’ ’
Mr. Genung: “Objected to as incompetent, immaterial and irrelevant and not proper examination. ’ ’
Court: “Sustained.”
Q. “Did you ever shoot any more than one man while you were at Folsom?”
Mr. Capell: “Objected to — ”
Mr. Clyde Genung: ‘ ‘ That is shooting hot air into here. ’ ’ Court: “Objection sustained.”
Mr. Hess: “I object to the statement of the various counsel on the other side of the table and object to it as misconduct. ’ ’
Mr. Clyde Genung: “I think the court ought to take the attorney for defendant to task for insisting on sticking in that prejudicial stuff that he knows is not true.”
Mr. Hess: “Let the record show that we except to the remarks of counsel for the great state of Iowa as рrejudicial.”
*747Mr. Ware: “You ought to make a general objection to everything we do and save this annoyance. ” ’
Mr. He£s: “I object to the remark of the assistant prosecuting attorney as misconduct and incompetent.”
Q. “Isn’t it a fact that you had trouble with Frank Mensena at Folsom and in connection with that trouble you shot him with a rifle?” (Objected to as‘incompetent, immaterial, irrelevant and not proper cross-examination.)
The Court: “Sustained.”
Mr. Genung: “I think counsel for the defendant ought’ to be instructed to go on, where he has made his record.”
The Court: “I guess there isn’t anything pending.”
Mr. Genung: “Let the record show that the state at this time asks the court to direct the defendant’s сounsel to desist from this line of cross-examination, having already made his record and ruling been had thereon, that the evidence is incompetent. ”
Mr. Hess: “The remarks of counsel are excepted to by defendant as misconduct and the counsel for the defense now asks the court to direct the various counsel on behalf of the state to desist from that kind of remarks.
The Court: “Well, the court does not see any occasion . for making this special ruling except that there is nothing pending in the way of a question and we ought‘to proceed.”
Counsel for the defendant except especially to thе remarks of the attorneys for the state concerning “shooting hot air into the case,” and “insisting on sticking in that prejudicial stuff that he knows is not true,” and also the remark regarding the general objection. It will be noticed that, though the characterization of the efforts of the counsel for the defense was somewhat original, it described quite accurately what was being undertaken. He was propounding a line of questions which he must have known were improper and seeking to inject evidence in the case that had no place *748there, and if the counsel for the state resorted to a severe charаcterization of what was being undertaken, it cannot be said to have been unjustifiable, in view of the circumstances, that the court, instead of forbidding that line of examination, simply ruled on the objections. It was an attempt to bring before the jury matters that had no place there, and, by a repetition of the questions in different forms, to impress the minds of the jury with the supposition that the witness had committed a crime, although this could not have been proven. There is no ground whatever for charging that counsel for the state went farther than they should in obviating this result. There was no misconduct on their part.
Defendant undertook to have identified Exhibit 16 by the witness Stuart, but was not permitted by the court to do so. As we have no means of knowing what Exhibit 16 was, it is impossible to say whether there was error. ■
In the course of the closing argument, L. T. Genung, assisting in the prosecution, said:
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The only foundation for this to be found in the record is the testimony of Frances L. Coffman, to the effect that she knew defendant, had seen him frequently, ‘ ‘ saw him the day Howard Jones was killed, at my home in the morning and along toward evening. Saw him at the Majestic theater that evening. He was with Antonio Roberts. A friend of mine, Mrs. Lane, was with me. We left the theater at about 9 :30. We walked around a while until about 10 o’clock, or a little after. Had talk with defendant about Howard Jones. Said he thought he ought to get even with Jones for making him lose his job. I told him not to do anything to Jones.”
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