149 Iowa 518 | Iowa | 1910
Defendants are Assyrian peddlers, and are accused of having killed and murdered one of their countrymen, Fred Nawful by name, who -it is said was their cousin, in Crawford County, Iowa, on or about January 5, 1907. They were first indicted by a Crawford County grand jury on the 8th day of February, 1907, and on the 12th of that month they appeared by attorneys,
Defendants challenged the second grand jury, and their challenge was sustained. Of this they can not of course complain. When the last grand jury was called they again interposed a challenge, based upon the ground that they had already been indicted by a legal grand jury, that the county attorney illegally dismissed the prior indictment, and that the third grand jury was an illegal body. They also made many objections to the method of the selection and drawing of the last grand jury. Among these are certain alleged irregularities of the county auditor and the board of supervisors. We have already seen that defendants are in no position to complain of the discharge of the first or second grand juries. And the order holding them in custody and ordering their case resubmitted to the last grand jury was clearly correct and in accord with the usual practice in such cases.
Some of the questions arising upon the trial are briefly argued, and to such as are deemed of interest we now turn our attention.
Some complaint is made of rulings on the cross examination of the expert witness who tested the stains on the coat and bat for human blood. No prejudice appears in these rulings. The cross examination was full and extended, and no abuse of discretion is shown.
The sheriff of the county was produced to testify as to a conversation in the county jail with defendant Joseph Hassan in the presence of the county attorney. It is claimed that this testimony tended to show incriminatory admissions by the defendant, and that the statements are not shown to have been voluntary. In this counsel are in error. There was testimony showing the voluntary character of these statements.
No. 24. ... If, in view of all the evidence, you have a reasonable” doubt as to whether defendants were in some other place when the crime was committed, you should give the defendants the benefit of the doubt, and find them not guilty. The defendants are not required to prove an alibi beyond a reasonable doubt to entitle them to an acquittal. It is sufficient if the evidence raises a reasonable doubt of their presence at the time of the commission of the crime charged.
No. 21. You are instructed that circumstantial evidence is to be regarded by the jury in all cases, and is many times quite as conclusive in its convincing power as direct and positive evidence of eyewitnesses. When it is strong and satisfactory, the jury should so consider it, neither enlarging or belittling its force; it should have its just and fair weight with you; and if, when it is all taken as a whole, and fairly and candidly weighed, it convinces the guarded judgment, you should convict, and on such conviction you are not to fancy situations or circumstances which do not appear in the evidence, but you are to make those just and reasonable inferences from circumstances proven, which the guarded judgment of a reasonable man would ordinarily make under like circumstances. You*532 are not artificial beings, governed by artificial or finespun rules, but you should bring to the consideration of the evidence before you, your everyday common sense and judgment as reasonable men, and those just and reasonable inferences and deductions which you, as men, would ordinarily draw from facts and circumstances proven in the case you should draw and act on as jurors.
No. 28. You are not to make any distinction between your judgment as jurors and your judgment as men; nor can you.say as jurors you have any reasonable doubt of that of which as men you have no such doubt. You should bring to your consideration of the evidence before you, your everyday common sense and judgment as reasonable men, and, from the facts and circumstances which you find to have been proven in the case, make the same reasonable inferences and deductions as jurors which as honest and intelligent men you would make therefrom. Your position as jurors does not require you to adopt new or artificial methods of logic or reasoning in reaching your verdict, but it does require that you act with the care, caution, and impartiality of honest men, acting under a solemn oath in the discharge of an important duty.
Instruction 24 is undoubtedly correct, and counsel simply say it does not correctly ■ state the rule as to an alibi. Such a statement is no argument, and needs no further elaboration. It is said that 27 is an argument in favor of circumstantial evidence and should not have been given. There is no merit in this claim.
At the instance of the state the court instructed as follows: ‘All evidence is, more or less, circumstantial,*533 the difference being in the degree, and it is sufficient for the purpose when it excludes disbelief — that is, actual, and not technical, disbelief; for he who is to pass on the question is not at liberty to disbelieve as a juror, while he believes as a man. It is enough that his conscience is clear.’
This is an isolated extract from an opinion by Chief Justice Gibson, in Commonwealth v. Harman, 4 Pa. 269. The forcible expression is characteristic of that distinguished jurist. The opinion from which it is taken discusses at length the nature of circumstantial evidence, and the quantum of proof requisite in criminal cases to justify a conviction. In the opinion in which it occurs the above extract would not mislead the jury. But the detached fragment embodied in the instruction above quoted, we can not but believe to be of dangerous tendency; particularly the expression that a person ‘is not at liberty to disbelieve as a juror while he believes as a man.’ We all believe facts as men, when we would not believe them and act upon them as jurors. The idea sought to be conveyed is that a juror is not an artificial being, whose judgment is to be governed by technical and artificial rules, but that he is a man, and should, while acting as a juror, act as a man, exercising his reason, his intelligence, his everyday judgment and his common sense. In -this sense, the proposition that if one believes as a man he should also believe as a juror is correct, provided that belief be founded upon and produced by the evidence in the case, and by nothing else, and is so strong, clear and satisfactory as to exclude all reasonable doubt.
If the guilt of the defendant had been fully and undeniably established, if the verdict upon the evidence were satisfactory, we might not have interfered with the judgment in consequence of the giving of the instruction under consideration. The instruction, as given, was, without explanation, calculated to mislead the jury.
Speaking to the same point the court said, in State v. Pratt, 20 Iowa, 267:
The third instruction given at the request of the state (the exception to which raises the last question meriting our attention) is, in substance, the same as the one dis*534 cussed in the fourth division of the opinion in the case of State v. Collins, supra. The law, as thus stated, was held to have a dangerous tendency, being calculated without explanation to mislead the jury. It was, however, expressly announced in that case that the giving of such instruction would not justify such a reversal if the guilt of the prisoner had been fully and undeniably established. And the reversal of that case was not based upon this misleading instruction, but upon other and more vital errors, as the opinion will most abundantly demonstrate. And in this case, where all of the instructions seem to have fairly presented the law; where the prisoner has apparently had a careful examination of his case upon its merits; and where the testimony, as he presents it in the bill of exceptions, prepared at his own instance, fully warranted the verdict — we can not consistently, with our duty to look at the substantial rights of the parties, and order such judgment on the record as the law demands, do otherwise than refuse, for this error, to reverse the case.
Such an instruction as here given was approved in Spies v. People, 122 Ill. 1 (12 N. E. 865, 17 N. E. 898, 3 Am. St. Rep. 320), and Nevling v. Com., 98 Pa. 322. It was inferentially at least approved in State v. Tyler, 122 Iowa, 125. In the instant case the jury was properly instructed as to reasonable doubt and as to the various matters relied upon by defendants, as, for instance, an alibi and good character. They were also properly instructed as to the character of circumstantial evidence necessary to a conviction. Instruction thirty which reads as follows, should also be considered in this connection:
No. 30. The court instructs the jury in this case the law raises no presumption against the defendants, but every presumption of the law is in favor of.their innocence, and in order to convict them of the crime charged in the indictment, or any lesser crime included in it, every material fact necessary to constitute such crime must be proved beyond a reasonable doiibt, and if the jury entertain any reasonable doubt upon any single fact or element necessary*535 to constitute the crime, it is your duty to give the prisoners the benefit of such doubt and acquit them.
None of the cases relied upon by appellants’ counsel go to the extent of condemning such an instruction as was here given, and -we are not justified in reversing the case on account of the language used. Additional cases from other states might be cited in support of the instruction; but those referred to seem all sufficient. We are not to be understood as commending this instruction even as given. It was unnecessary, and the propriety of such a charge may well be questioned. In view of what has been said in prior cases its giving was not reversible error.
Prom the Charley Baker home, Joseph Hassan and Solomon Hassan went on toward Ells, Iowa, and there Joseph Hassan was confronted with the statement of the murder of Pred Nawful. Hassan then almost immediately left one of his horses in the barn of B. P. Ells and rode the other horse to Denison, where he was arrested for the murder. Joseph Hassan then and there made the statement that he had not seen Pred Nawful since January 1, 1907, at Panama, Iowa, and he made the further statement that he had not been in Denison on January 5 1907, and he denied that he had hitched his team to th,e spring wagon or buggy of Joseph or Oscar Johnson or that he had driven the same to Denison, but he insisted that he had spent all day January 5, 1907, at the Johnson home, that he had not been off the place all day, and that he had not been with Pred Nawful in Denison that day. Solomon Hassan did not go to Denison when he heard of the murder of Pred Nawful, but went on northeast as far as Sac City, where he was arrested and brought to Denison; Sac City being some forty-five miles from Denison.
January 5, 1907, the day of the murder, was a very mild day and it thawed to such an extent that the roads
On the 9th day of January, 1907, Joseph Hassan left one of his horses in the barn of B. F. Ells, while he rode the other to Denison, and in this same barn in a currycomb box, A. B. Ells found a small account book which was proved to be the account book of Joseph Hassan, and in this account book were three loose leaves with accounts on them, which three loose leaves were proved to be leaves taken out of the account hook of Fred Nawful, which account book was in the possession of Fred Nawful on the 3d and 4th days of January, 1907, and which three loose leaves proved to be accounts of persons who had purchased merchandise of Fred Nawful on credit.
On the 3d and 4th days of January, 1907, Fred Nawful sold some laces to two different parties, and, after the murder, laces were found in the possession of Joseph Hassan which were the same kinds as had been sold by Fred Nawful to these two parties, and the cut edges of the two kinds of lace that had been sold were matched to the cut edges of the lace found in the goods of Joseph Hassan, and it was shown that the two pieces of lace that
When Solomon Hassan went through Crawford County on his way to Panama shortly before Christmas, 1906, he traveled the road which passes the pasture where Fred Nawful was found dead, and at that time had a ball bat in his possession, and still had this ball bat in his possession when he left Panama for Denison on the 2d day of January, 1907. On his way north through Crawford County on the 3d day of January, 1907, he again traveled the road which passes the said pasture, and on the 4th day of January, 1907, a person by the name of John Weber who was hunting in the said pasture, testified that he saw a ball bat lying near the place where later the dead body of Fred Nawful was found, and this ball bat was proved to be a similar bat to the one Solomon Hassan had in his possession' at about Christmas time, 1906. When the dead body of Fred Nawful was discovered, a search for the ball bat which had been seen in this pasture by John Weber, was made, ■ but the bat was missing. On the 6th day of January, 1907, one Carl Evers found a ball bat on the ice beneath the bridge which crosses the West Boyer River near Denison on the direct road which leads to and from the pasture where the dead body of Fred Nawful was found, to Denison. This ball bat had on it at the large end, some material of a red color which was proved by expert testimony to be human blood, and it was further proved that this ball bat found by Carl Evers on the day after the murder was the ball bat of Solomon Hassan.
In the pasture near where the body of Nawful was discovered, four discharged revolver cartridges were found, said empty cartridges being .32 caliber, and of the S. & W. type or make, and these empty cartridges were corroded and indicated that they had been in some revolver for some period of time. In the peddler wagon
When Fred Nawful was at the home of G. P. Kronkhite on January 3, 1907, he had a large amount of money on his person in the form of bills rolled up, the roll being-some four inches in circumstance and also some silver, but when his dead body was found there was no money on his person. When Joseph Hassan was arrested he had on his person a large roll of bills in the amount of $217 and $20.20 in silver and other coins, and when Solomon Hassan was arrested he had on his person money in the sum of $45.57.
When Fred Nawful was at the home of Kronkhite on January 3, 1907, he had in his possession three large handkerchiefs or mufflers of very bright colors, and these same handkerchiefs or mufflers, or three proved to be exactly similar, were found in the peddler wagon of Joseph Hassan.
Hpon such a record it is clear that there is ample testimony to support the verdict. No prejudicial error appears, and the judgment must be, and it is affirmed.