136 Iowa 89 | Iowa | 1907
I. At the time and in the manner prescribed by law, twelve persons were drawn as the regular panel for the grand jury in Iowa county, for the year 1905. The March term of court for said county began March 13th and on that day the persons forming the panel appeared, and there was organized a grand jury for the term consisting of seven persons as required by law, one of whom, John Mul-herin, was appointed and served as foreman. On March 17th
By the objections made, and by a motion in arrest, the defendant challenged the regularity and legality of the proceedings thus had leading up to the indictment. The contention, first in order, has relation to the drawing by the clerk of the special panel of grand jurors. It is a provision of the statute thát the regular grand jury panel shall consist of twelve persons, whose names shall be drawn from the grand jury list; “but no more than one person shall be drawn as grand juror from any civil township,” etc. “ If more persons shall be drawn from any civil township than is hereby authorized, . . . it is the duty of the officer drawing such grand jury to reject all such names so drawn, and to proceed with the drawing until the required number of jurors shall be secured.” Code, section 339. It is further provided by statute that the grand jury, when made up,- shall consist of seven persons to be drawn from the panel of twelve. Code, section 5240. Where, however, a challenge to the panel is allowed, a new grand jury shall be impaneled to inquire into the charge against the defendant making the challenge. And “ the names of jurors required to impanel a new jury shall be drawn from the grand jury list.” If, in any given ease, the grand jury has been reduced to a less number than seven by reason of challenges to individual jurors, “ the additional jurors required to fill the panel shal^
III. As the judgment appealed from must be reversed, and the case remanded, vt^e shall notice only such of the other errors contended for as are likely to arise upon a retrial of the ease. And, first, as to the indictment: It is in three counts. The first charges that the defendant “ committed the crime of murder in the first degree in and upon Alvin Hotchkiss, then and there being, willfully, maliciously, deliberately and premeditatedly, on the railroad of the Chicago, Eock Island & Pacific Eailway Company, did, for the purpose and with the intent of perpetrating a robbery, willfully and maliciously disconnect the rails on said railroad and draw spikes securing said rails, and displacing said rails, for the purpose of wrecking passenger train No. 41 of said railway company, as aforesaid, and said train was wrecked by reason of the disconnection of said rails, and drawing of the spikes and displacing the adjoining ends of said two rails in opposite directions, for the purpose and with the intent of derailing and wrecking said train, and perpetrating a robbery from said wrecked train, and of the persons thereon, and the said train was wrecked by means of the aforesaid obstructions on said railroad, and the said Hotchkiss was fatally injured, . . . from which he died.” It is conceded, for the purposes of our present consideration, that in each of the second and third counts was a charge of murder; the circumstances of the commission being somewhat differently stated.
An inspection of the record discloses that evidence of the character referred to in the instruction was introduced by the State over the objections of defendant." We think the contention for error must be sustained. We may concede value to opinion evidence as related to mental soundness or unsoundness of an accused person on trial; proper foundation being first laid. But there is neither reason nor authority for saying that it is competent for the State to call non-expert witnesses from the bystanders to express their judgment, founded alone, on observations made during the trial, of the conduct of the accused — whether or not in his expression of face, and movement of the body he was feigning or assuming a part he did not feel. Moreover, if matters inhering in the personal appearance and actions of'an accused person as he sits in the chair placed for him by the sheriff, or as he walks into and from the courtroom, could by any possibility become material matter to be considered by the jury in determining upon his guilt or innocence, the jurors themselves are a.s competent to j.udge as could be .any non-expert witness, and it would be their exclusive province to judge.
No other matters appear which seem to require discussion in view of the disposition of the case we feel called upon to make.