170 Iowa 731 | Iowa | 1915
Howard 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 told 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.
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 portion 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 authorizes 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
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*738 be 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 cause 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
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.
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
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
The sheriff of Pottawattamie county was allowed 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.
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 name 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 prejudicial.”
*747 Mr. 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 counsel 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 the 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
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:
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.”