The numerous objections urged to the proceeding and the rulings of the District Court may be more conveniently considered in the order chosen by counsel for defendant in their presentation. The facts of the case will be presented as their consideration may be necessary, in the discussion of the questions we shall he called upon to decide.
Ten of the grand jurors unite in an affidavit, contradictory of the statements of their fellow jurors, showing that there was no fraud, irregularity or violation of law in the finding and presentment of the indictment. The district attorney, by affidavit, makes a like statement. The motion was properly overruled. This court has held that affidavits of grand jurors, to the effect that they did not assent to the finding of an indictment, are not admissible in support of a motion to set it aside. The State v. Gibbs, 39 Iowa, 318. The grand jurors cannot he heard to deny that they assented to the indictment in the form it is presented. The charge of fraud and irregularity in presenting.the indictment, if it be proper to support
The provisions of the Code ajoplicable to the questions arising upon the action of the court in denying the application for a change of venue, which is assigned as error by the prisoner, are as follows:
“ Section 4368. In all criminal cases which may be pending in any of the District Courts of this State, any defendant may petition the court for a change of venue to another county.
“Section 4369. Such petition must set forth the nature of the prosecution, the court where the same is pending, and that such defendant cannot receive a fair and impartial trial owing to the prejudice of the judge, or to excitement or prejudice against him in such county, and must verify the same by his affidavit stating the same to be true as he verily believes.
“Section 4370. When the ground alleged in the petition is excitement and prejudice against him in the county, it must be verified by three disinterested persons, residents of the
“ Section 4371. The petition need not state the facts upon which the belief of the petitioner or other person verifying the same is founded, but may allege the belief of the particular ground thereof in general terms.
“ Section 4372. The court may receive additional testimony, by affidavits only, either on the part of the defendant or the State, when the alleged ground in the petition is excitement and prejudice in the county against the petitioner.”
“ Section 4374. The court, in the exercise of a sound discretion, must decide the matter of the petition, when fully advised, according to the very right of it.”
It will be observed that the requirements of the provisions applicable to the two cases, in which a change of venue is allowable, differ. "When the change is sought ou account of. the prejudice of the people of the county, the petition must be verified by three disinterested residents of the county; additional testimony, also, may be received by the court upon the allegations of the petition. When the petition charges the judge with prejudice, it is not supported by the verification or testimony of witnesses. The court acts upon it alone. An application based upon either ground recognized by the statute is to be determined in the exercise of a sound judicial discretion.
In a case wherein the change of venue is sought upon the ground of the prejudice of the judge, it cannot be claimed that the application must be granted as a matter of course, without the court passing upon the merits and determining the existence of the cause upon which it is grounded. The court is required to exercise a judicial discretion in deciding upon the matter of the petition. This discretion is aj>plied in determining the facts as well as the law of the case. We cannot disturb decisions of inferior courts made in the exercise of legal discretion, unless it be made to appear to us that such discretion has been abused — unlawfully exercised. In the case before us there is nothing tending to show illegal action by the court upon defendant’s petition for a change of venue. No fact is brought to our attention establishing the existence of
III. At the trial a witness, Austin, was introduced on behalf of the State, and to the introduction of his testimony' objection was made by the defendant on the ground that his name was not indorsed upon the indictment, as required by-statute, and he was not examined before the grand jury. Code, §§ 4293, 4421. The statute provides in such cases that, to authorize the admission of the testimony of such witness, the district attorney shall give to the defendant a “notice in writing, stating the name, place of residence, and occupation of such witness and the substance of what he expects to prove by him on the trial, at least four days before the commencement of such trial.” Upon the motion of defendant to exclude the testimony of Austin it was shown that such a notice had been given, which stated that the witness resided in Pottawattamie county. His real place of residence, however, was found to be in Montgomery' county. The court admitted his evidence, and this action is made the ground of an objection urged in this court.
It does not become necessary to determine whether the
IY. A witness for the State testified as follows: “I saw defendant in the office of Montgomery & Scott. I am a member of the bar and was at that time. * * * Was working as an attorney-at-law for Messrs. Montgomery & Scott at that time. My duties were those of an attorney and lawyer at the time in that office. Had been so engaged therein about five months. I was working in the office in our business on, a salary. He (defendant) was a client of ours at that time; was consulting with us about a suit with Dr. Hatton [the killing of whom is charged in the indictment against defendant] for malpractice. Defendant came in and consulted about his suit with decedent. What he said was during such counsel and in course of consultation.” The State then interrogated the witness upon the subject of threats made-at that time and place against the life of deceased. The counsel of the defendant objected to the testimony sought to be elicited, on the ground that it would expose communications made by defendant as a client to his counsel, which were privileged and not the subject of lawful communication by the attorney. The objection was overruled and the witness was permitted to answer, stating that defendant did at the time threaten the life of Dr. Hatton.
■ It may be conceded that the relation of attorney and client existed between the witness and defendant, and that the threats were made by defendant, which were the subject of the testimony objected to, during a communication with the witness in his professional capacity upon a subject concerning which his advice or the advice of his firm was sought. But it very clearly appears that the threats in no manner pertained to the business of the professional consultation; they had nothing to do with the litigation or contemplated litigation about which the advice and assistance of the attorneys were solicited. It cannot be claimed, even, that the intention expressed by the threats was a matter submitted to the attorneys professionally. Their advice and aid were not sought in regard to it. The defendant’s enmity, spirit of revenge, or other motive, whatever it may have been, which prompted the threats had no connection with the matter involving the rights of defendant submitted to the attorneys. Neither the threats nor the motives of defendant were the subject of professional communication. They cannot therefore be regarded as privileged. 1 Greenleaf’s Ev., § 140; Pierson v. Steortz, Morris, 136; Code, § 3643.
We need not consider the threats in the view of their unlawfulness, as depriving them of the character of a privileged communication. The ruling of the District Court is sufficiently supported upon the grounds above stated.
Y. A witness for the State, who had testified, upon the direct examination, that he saw the defendant, about the time of the homicide, with a gun in his hands, was asked upon the cross examination if he did not know, as a matter of fact, that the defendant was in the habit of carrying his gun for the purpose of guarding his sheep that were pasturing near the place, and that he had used the gun to kill dogs that had worried 1ns flock. The question was objected to by the district attorney as not proper upon cross examination and was not allowed .by the court. This ruling is complained of by
YI. Testimony tending to prove the insanity of the defendant at the time of the homicide was introduced in his behalf. It was claimed that this condition of mind had existed for some time. A witness for the State testified that during the time of the alleged insanity he had two conversations with defendant and saw him often, but observed nothing unusual in his actions, and that, in the language of the witness, “ so far as I could see, he was as regular and sane as the first day I saw him.” Upon, the cross examination, the counsel for defendant asked the witness if he thought himself competent to give an opinion as to defendant’s sanity. An objection to the question was sustained, on the ground that it was not proper in cross examination. The ruling is complained of as erroneous. We think it was correct. ' The witness had stated facts, and not his opinion of defendant’s sanity. The question, therefore, did not relate to matters brought out upon the direct examination.
YII. Other objections to the proceedings and judgment are based upon the rulings of the court in giving and refusing instructions, .and in overruling a motion for a new trial on the ground that the verdict is in conflict with the evidence and the law as given to the jury by the court. The consideration of the objections demands attention to the testimony given upon the trial. We will proceed to state, briefly, the purport of the evidence, so far as it is necessary for the proper understanding of the questions we are called upon to discuss and determine.
The defendant, at the time of the homicide, was a farmer and about fifty-two years of age. He had sons and daughters of mature years and others yet in childhood. About one
On Sunday, the 18th of July, 1875, Dr. Hatton was called to visit professionally a patient living about a mile and a half from defendant’s place of residence. The father of the physician, a man of seventy-two years of age, accompanied him in his buggy, and they passed within a quarter of a mile of defendant’s house. They also drove near the house of a neighbor where defendant was at the time. He was informed of the fact of their passing the house and immediately left,
In returning from the visit to the patient the road traveled by Dr. Hatton and his father took them again near defendant’s house. They reached this place not long after defendant had left his neighbor’s house, as above stated. The incidents immediately connected with the act of defendant which resulted in the killing are related by the father of Dr. Hatton in the following language: “After we'got around the willows, we saw defendant going through the fence, with his gun in his hand, east of us — might have been eighty or a hundred' yards; defendant came through his fence across first track of road to second road; came in front of doctor when pretty near his gate; we were driving on a trot; he came down the road with his gun; thumb looked like on the cock; he raised up and doctor said ‘stop!’ this is all the doctor said, when gun went off; gun about three feet long; don’t think it was a second after he raised up until he shot; don’t know whether betook aim or not; we had a two-stepped buggy; my left foot was out on upper step; when the gun went off the doctor fell over my right thigh, and it scared the team; they went on; I went out near Mewherter’s gate; looked back and saw defend-ant behind, standing in the path, about half bent, with gun presented like he was going to shoot again, but he did not; looked back again; defendant said, ‘ Oh! God damn you, I have killed you’; that was all defendant said.” The shot took effect in the abdomen and the doctor lived about two weeks.
The fact of killing was not contested at the trial; the defense wholly relied upon'was the alleged insanity of defendant. The testimony tended to establish that after the confinement of defendant’s wife, when she was treated by Dr. Hatton, defendfendant’s disposition, temper and deportment, whenever that subject,was spoken of by him or his mind was directed toward
Hpon evidence of the character indicated above, the cause was submitted to the jury upon numerous instructions upon the law of the case given by the court. After we have considered the correctness of the ruling in excluding certain instructions asked by defendant, those given will claim our attention. ■
It will be at once observed that this instruction fails to present the condition, that the mental disease must have destroyed the power of defendant to comprehend, rationally, the nature and consequence of his act and overpowered his will, which must exist in order to render him free from accountability for his acts. State v. Felter, 25 Iowa, 68.
X. We will here depart from the order pursued by defendant’s counsel in considering their objections to the record, and take up the instructions given by the court upon the sub
After defining, in the ninth instruction, total insanity or madness, and informing the jury that one afflicted with such mental disease is not criminally responsible, the court proceeds, in the tenth instruction, to announce the rule of law applicable to partial insanity, which, it was claimed in the defense, was the character of the alleged disorder of the mind of defendant. The jury were informed that if defendant, on account of his mental disease, was not able to distinguish right and wrong and had not knowledge and understanding of the character and consequences of his act and power of will to abstain from it, he was not legally a responsible being. This is the certain meaning of this instruction, expi-essed with sufficient clearness. It is in harmony with the rule on the subject recognized by this court in The State v. Felter, 25 Iowa, 67.
These doctrines, it is believed, have the support of the adjudged cases of this country and England. See 1 Wharton & Stille’s Med. Jurisp., §§ 125, 126, et seq., and cases cited. They are not, we are aware, fully approved by others entitled to respect. See section 130 of the booh just cited, and Balfour Browne’s Medical Jurisprudence of Insanity, pp. 18,19. They have been assailed with great force by another able writer upon the medico-legal science. Ray’s Medical Jurisprudence of Insanity, §§ 29-39, 306.
■ XII. Counsel for defendant raise many objections to the instructions given by the court which are based upon critic cisms of the language rather than upon the very substance of the principles announced therein. We will notice one or two which will present fairly the character of all of these objections.
The second instruction defines correctly the different degrees of homicide. Murder, the jury is informed, is the hilling of a human being with malice aforethought, either express or implied. The crime, they are then told, possesses two elements: first, the killing of a human being; second, the malice. The court proceeds clearly enough to explain the term malice and points out when it will be presumed to be of the degree or character which constitutes murder. But, in using the term malice in these explanations, the adjective aforethought is not used in connection with it. This is the ground of counsel’s criticisms. They are not well founded. The court in the language complained of explained to the jury what facts authorized the conclusion that malice had the quality of being aforethought. It was not necessary in doing so to couple the adjective, the meaning of which the court was explaining, with the word malice whenever it was used.
XY. Complaint is made that the instructions unfairly present the case to the jury, in that principles of law, which, in their application, would be against defendant, are emphasized, and others which in the same manner would be favorable, are not presented with the same force. Numerous objections of this character, which are rather to the manner of the instructions than to their substance, are made. A careful study of the District Court’s charge satisfies us that these complaints and objections are without foundation. No good purpose would be accomplished by presenting each objection of this character and pointing out its want of soundness. All the instructions given to the jury, in our opinion, are in accord with the law.
XYI. We think the verdict is amply supported by the evidence, and that the court rightly overruled the motion for a new trial based upon the ground of the insufficiency of the testimony to support the conviction.
Affirmed.