38 Iowa 51 | Iowa | 1873
Thereupon the Auditor of the county was introduced, who testified that “according to the statute the list of petit jurors Was selected in the fall of 1870, from a list of 250, furnished from the different townships according to statute, that from said list 250 were made out as required from which to select the petit jurors for the succeeding year, that but one such list was made out, and from which the petit jurors for the District and Circuit Courts of the county, were drawn for the January 'term, 1871, of the District Court, and the February term, 1871, of the Circuit Court, and from which list the jury for the present term was drawn, and from no other list.”
The defendant thereupon moved a venire de novo. The objection to the panel and said motion were overruled, and
£* Two jury lists, one consisting of seventy-live persons to serve as grand jurors, and one consisting of one hundred and fifty persons, to serve as petit jurors, and both lists composed of persons competent and liable to serve as jurors, shall be annually made in each county, from which to select jurors for the years commencing on the first day of January, annually. Should there be less than that number of such persons in any county, the list shall comprise all those who answer the above description; and, in counties containing a population of over twenty thousand inhabitants, the list of petit jurors shall consist of two hundred and fifty persons.” Revision § 2723, and § 272é as amended by § 3, Chap. 167, Laws 1870. These sections do not provide a jury list for any particular court. The prescribed list shall be annually made from which to select jurors for the year, commencing on the first day of January. A jury list is provided for each county from which to select a jury for the ensuing year. If a new court is created with authority to use a jury, and no provision is'made for securing a list from which to select such jury, the subsequent legislation will be construed in connection with the existing provisions, and will be regarded as imposing an additional burden upon those selected to fill the required lists. The act creating the Circuit Court provides as follows: “ The Circuit Court of each county shall be a court of record, and all statutes now in force respecting the venue and commencement of actions, the jurisdiction, process, and practice of the District Court, the pleading and mode of trial in actions at law or in equity, the relation and attendance of petit jurors * * * * shall be deemed applicable to said Circuit Court, except when the same may be inconsistent with the provisions of this act.” Thus a jury is provided for the Circuit Court, and the provisions of the law respecting them are made applicable thereto.
The law no where expressly demands a separate jury list for
An opinion once formed, is rarely removed without “ some evidence or explanation.” And yet an intelligent, right minded man, notwithstanding such opinion, can determine a case, u]30n the evidence submitted, without bias, partiality, or prejudice. It is much safer to submit the grave concerns of life to such a juror, than to one who does not take sufficient interest in current events, to know what is transpiring around him. ' The law does not require that a juror shall be without opinion respecting a case. “A challenge for implied bias maybe taken for any of the following causes: * * *
* * * Having formed or expressed an unqualified opinion or belief, that the prisoner is guilty or not guilty of the offense charged.” Revision; ■§ 4771, sub-division 8. The juror stated that he had not formed such opinion. His further examination does not show that he had formed such opinion. He was therefore a' competent juror. Any rule rendering him incompetent would be found utterly impracticable. See Wau-kon-chaw-neek-kaw v. United States, Morris Rep., 332; State v. Hinkle, 6 Iowa, 380; State v. Sater, 8 Iowa, 420; State v. Thompson, 9 Iowa, 188; State v. Ostrander, 18 Iowa, 451; The People v. Stout, 4 Parker’s Criminal Reports, 108; Sanches v. The People, Id. 553.
III. The evidence disclosed the following state of facts: The defendant for some time entertained ill will toward the
About six o’clock on the evening of the affray defendant met Anton Bauerback, the deceased, coming up an alley in Burlington, and asked him to stop, which he did' not do. Defendant then took hold of deceased’s arm. Deceased told him to let go, or he would pick him up and break him in two. Defendant then said, “You Dutch son-of-a-bitch, you have got to take back what you have said.” Afterward defendant stated two or three times that he intended to whip Bauerback.
About 9 o’clock the same evening deceased was standing, on the steps of the Lawrence House. Defendant came out of the door and slapped him on the shoulder with his open hand. Deceased turned round and defendant struck him with his left fist, and he fell down on the pavement. Defendant jumped from the door on deceased as he lay on the sidewalk, and commenced kicking him, and jumped upon him once or twice. Defendant’s father came out, and defendant said, “There* is your man; I have done it. Let them arrest me.” Deceased did not rise nor offer any resistance, after he struck the pavement. He died in about thirty minutes. An examination of his person discovered a wound over the right eye, about an inch long; another across the nose running diagonally across the face; two cuts on the back of the head similar to the one in front, and an appearance of fracture of the small bones of the base of the skull. There was extravasation of the brain. The. opinion of the physicians was that death resulted from mechanical injuries upon the head. The jury having been out about thirty-six hours, were brought into the court room, and proceedings were had which are set out in the bill of exceptions as follows:
“ Be it remembered that on the trial of this cause, after the same had been submitted to the jury, and the jury had been out for about thirty-six hours, the officer in charge of them was directed to bring the jury into court. That after the names of the jurors had been called, the foreman of the jury informed the court that they had not been able to agree. The court then inquired of them whether they differed as to the
“ The court was induced to make these remarks to the jury because it was advised there was a willful disregard of the evidence in the cause, and of the instructions, by one or two of the jurors, and because of the report referred to in the remarks of the court to the jury. To which action of the court the defendant then and there objected and excepted as being an undue and improper procedure, and an interference with the prerogatives of the jury. The verdict of the jury was returned in about two hours after said remarks were made to them. Said proceedings on the part of the court were oral, and not delivered in writing, but reduced to writing, and handed to counsel • of defendant immediately after making them.”
We recognize in its fullest extent the' doctrine that a jury, in an honest and conscientious endeavor to determine the facts of a case, should be- free from the dictation and interference of the court. And whenever it is rendered reasonably apparent
The propriety of some of the remarks it would be somewhat difficult to vindicate, but that they do not constitute error justifying a reversal of the case we feel quite clear.
The remarks, though delivered orally, were immediately reduced to writing, and handed to counsel of defendant. No pretense is made but that they were correctly written. There is, therefore, no prejudice to defendant from this action.
IY. The defendant introduced one Carnahan, as a witness, and to show provocation for the act, proposed to prove that within an hour of the principal occurrence deceased and defendant met, and had a conversation, in which the prisoner requested the deceased to state if he had used certain slanderous words against the chastity of defendant’s wife, repeating them to him, and the deceased refused to recant them, but intimated that they were true, and threatened the defendant if he did not keep away from him he would break him in two. The court excluded this evidence, and the defendant assigns the action as error. If the evidence had been admitted, it could have furnished no justification for an assault iqpon the deceased, much less for taking his life. The most that could have been claimed for the evidence would have been a reduction of the offense to the lowest grade of homicide. The jury so reduced the crime by their verdict. Hence in this ruling there is nothing of which defendant can complain.
The jury, having been out for some time deliberating upon their verdict, came into court and reported that they had failed to agree, and one juror said they had trouble over a certain one of the court’s instructions. Thereupon the court in writing explained the instruction alluded to, and proceeded as follows: “You must look at the whole evidence of the case in determining as to who struck the first blow, or as to who -was the aggress r, and if there is no testimony that the deceased was the aggressor, struck the first blow; and if there is affirmative evidence. that defendant did strike the first blow, and if the defendant made threats that he would whip or chastise the deceased before the homicide, and if he stated afterward that he had whipped him, then you should conclude that the defendant was the aggressor, and n)t the deceased.” When this is analyzed it amounts to no more than a direction that if there is no evidence < f a given fact, and is evidence of the contrary fact, a jury should find the fact to exist of which there is evidence, rather than that of which there is n > evidence. Surely this furnishes no just ground of complaint.
A careful examination of the whole record, satisfies us that
Affirmed.