154 Iowa 672 | Iowa | 1912
In People v. Grinell, 9 Cal. App. 681 (98 Pac. 681), the defect in the indictment was the omission to negative an exception, not included in the statute of this state, cohsti
In McBean v. State, 83 Wis. 206 (53 N. W. 497), it appears that the jury had sent this inquiry to the court: “If we bring in a verdict of guilty, can we depend on the clemency of the court?” And the court responded in substance that they could. This was held to be error, the court saying:
The question put by the jury to the trial judge in the case at bar was, in and of itself, harmless. The error consists of the promise made by the trial jud^e to the jury, to
In Territory v. Griego, 8 N. M. 133 (42 Pac. 81), jurors had been out a long time and, on returning into court, reported their inability to agree, and, after some talk with them, the court said there was an instruction he might have given which the law authorized: “While the law fixes the punishment in the case br rather while the court assesses the punishment, the law authorizes you, in case you find defendant guilty, to commend him to the mercy of the court; and that recommendation made by the jury will be considered by the court in fixing the punishment.” In half an hour the jury returned with a verdict of guilty and a recommendátion to the mercy of the court. In holding this instruction erroneous, the court remarked that the sudden agreement of the jurors, after being out fifty-four hours, indicated that they must have been “influenced quite powerfully by the judge’s instruction that a recommendation of mercy would receive his consideration in fixing the punishment. It seems within the range of reasonable probability that with a knowledge that nothing but the death penalty would be the consequence of their
In State v. Keifer, 16 S. D. 180 (91 N. W. 1117, 1 Ann. Cas. 268), to an inquiry by the jury whether they could recommend the accused to the mercy of the - court, the latter answered that it had made it an invariable rule to follow such recommendations, and this answer was held to be calculated to influence the jury. Other decisions are readily distinguishable because of differences in the facts.
In Lovett v. State, 30 Fla. 142 (11 South. 550, 17 L. R. A. 705), the statutory effect of a recommendation to mercy by the majority of the jury reduced the penalty from death to life imprisonment, and an instruction with reference thereto was approved. In State v. Gill, 14 S. C. 410, the court merely replied affirmatively to an inquiry of the jury whether they might recommend the prisoner to mercy if found guilty and, since no intimation of the consequence of such a recommendation was given, the court held there to have been no prejudice. In Crawford v. State, 2 Yerg. (Tenn.) 60 (24 Am. Dec. 467), a recommendation of mercy to the Governor was returned with the verdict. One of the jurors made affidavit that he woud not have agreed to the verdict but for his belief that it would be effectual and another swore that it led him to agree. Such affidavits were held admissable, and a new trial ordered because of the misapprehension of these jurors. But in State v. Bennett, 40 S. C. 308 (18 S. E. 886), and Penn v. State, 62
The jurors should not have concerned themselves with the punishment, and ought to have been plainly told that they ought not to take that into consideration. Their function ended in deducing the truth from the evidence adduced and expressing it in their verdict. Anything said by the court calculated to draw their attention from the performance thereof, and to induce them to rest their conclusion upon ulterior considerations necessarily was misleading and prejudicial. We are of opinion that the promise of the court to give the recomendation consideration might well have led the jury to believe, and doubtless did, that the sentence to follow would be somewhat modified because thereof, and that this was extremely prejudical to the defendant.
Because of this error, the judgment is reversed, and the cause remanded. — Reversed.