17 N.W.2d 138 | Iowa | 1944
This opinion is substituted for an earlier one reported in 13 N.W.2d 705, which was withdrawn and a rehearing granted on September 23, 1944.
This defendant (Clarence Wilson) and his two brothers, Glenn and Albert, were jointly indicted as principals for the murder of Harry Bolden. A separate trial was granted to each. It is the State's theory that Glenn killed Bolden by striking him with a club while Clarence and Albert were present aiding and abetting by holding Bolden. The killing followed a drinking party in which an argument arose that in turn led to the fight. The Glenn Wilson case is reported in
[1] I. Error is claimed in the overruling of defendant's motion to set aside the indictment based on the exclusion of women from the list of names from which the grand jury was chosen. The clear trend of the decisions is that, so long as no names are placed upon the lists that could not properly be included and no class of persons is excluded to the defendant's prejudice, there is no ground for questioning the indictment. State v. Sangster,
[2] II. Over defendant's objections, four peace officers testified to oral declarations and a written statement made by Glenn Wilson, not in Clarence's presence, the day after the killing. The written statement contains a recital of the events leading up to the fatal blow and an admission that Glenn struck Bolden on the head with a stick. The State, in an attempt to justify the admission of this evidence, invokes a rule which prevailed at common law that upon the trial of an accessory guilt of the principal could be proven by any evidence which was admissible against the latter. The contention cannot be sustained. The admission of this evidence was prejudicial error. The common-law rule is not applicable here, even without considering section 12895, Code, 1939, which provides that the distinction between an accessory before the fact and a principal is abrogated, and all persons concerned in the commission of an offense must be indicted, tried, and punished as principals.
At common law the principal in the first degree was the actual perpetrator of the crime. A principal in the second degree was one who was present, actually or constructively, aiding and abetting the act. 1 Wharton's Criminal Law, Twelfth Ed., 325, 327, 328, sections 240, 245; 40 C.J.S. 836, sections 8, 9; 26 Am.Jur. 197, section 57; 33 Words and Phrases, Perm. Ed., 615. An accessory before the fact, at common law, was not actually or constructively present at the commission of the crime but procured, counseled, or commanded another to commit it. 40 C.J.S. 836, section 9; 1 Words and Phrases, Perm. Ed., 246-248. At common law the confession of the principal was admissible on the trial of the accessory, to prove the commission of the crime by the principal, provided some evidence of the defendant's co-operation was first furnished. IV Wigmore *541
on Evidence, Third Ed., 133, section 1079 (c); Mulligan v. People,
The basis for this rule of evidence was that in order to convict the accessory at common law guilt of the principal must first be proven; guilt of the accessory depended on guilt of the principal; the acquittal of the principal entitled the accessory to his discharge. Indeed, at common law, an accessory could be tried with the principal or separately after the latter's conviction, but he could not, except with his consent, be tried before the principal. State v. Lee,
But even at common law this defendant was not a mere accessory but a principal. State v. Berger,
While there is some confusion in the matter because some courts have not kept in mind the distinction between principals in the first and second degree on the one hand, and principal and accessory on the other, the sound rule, and we think the weight of authority, is that a confession by one who was at common law a principal in the first degree is not admissible *542
against one who was present aiding and abetting the commission of the crime (i.e., a principal in the second degree). State v. Beebe,
Our conclusion also finds support in decisions under statutes similar to our section 12895 that declarations of the principal after the commission of the offense, in the absence of one who was at common law an accessory before the fact, cannot be shown upon the trial of the latter and that the acquittal of the principal does not bar prosecution of the accessory. State v. Bogue,
Somewhat in point are the numerous cases holding that declarations of a coconspirator, not in the presence of the accused, after the termination of the conspiracy are inadmissible against the accused. State v. Huckins,
We think this case is governed by the rule of State v. Westfall,
The right of this defendant under Code section 13842 to a separate trial presupposes the right to have his guilt or innocence determined upon evidence admissible as against him, free from the prejudicial effect of evidence tending to show only the guilt of his brother Glenn. Otherwise the right of separate *543
trial is of little value. State v. Beebe, supra,
The State contends this evidence was not prejudicial because, it is said, defendant conceded that his brother Glenn killed Bolden. State v. Chumley,
The State also argues that Officer Nevins testified Glenn admitted in the presence of this defendant, who remained silent, that he struck Bolden with a club and that the hearsay evidence is therefore without prejudice. While incompetent evidence is frequently held to be nonprejudicial where the same fact is shown by competent evidence, this principle has no application here. The incompetent evidence goes much further than any competent evidence in the record. See State v. Lyda,
[3] III. Defendant contends there was evidence that Glenn acted in self-defense and the jury should have been instructed upon that issue. This question may not arise upon a retrial since it is the hearsay evidence which was improperly admitted *544
that defendant claims tends to show Glenn so acted. It is sufficient to say that if upon a retrial it is claimed, and there is evidence, that Glenn acted in self-defense, the jury should be instructed that this defendant would not be guilty if he merely aided and abetted Glenn, and the burden is upon the State to negative self-defense. See State v. Wilson, supra,
[4] IV. Defendant offered to prove by different witnesses that the general reputation of deceased in his home town on and prior to the date of the crime, as to being violent and quarrelsome, was bad. The rejection of the offered testimony is assigned as error. This alleged error also may not occur upon a retrial. It is sufficient to say that if upon a retrial it is claimed, and there is evidence, that Glenn acted in self-defense, such testimony as was offered before will be proper and should be received. The reputation of deceased for being violent and quarrelsome bears on who was the aggressor and, if known to Glenn Wilson, also on his reasonable apprehension of danger. State v. Leeper, supra,
[5] V. Several defense witnesses testified that at the time of the homicide defendant was suffering from arthritis and was at least partly incapacitated. It is claimed the jury could have found he was physically incapable of aiding and abetting Glenn and should have been instructed that in the event of such finding there should be an acquittal. No instruction to this effect was asked and none given. *545
We do not think failure to give such an instruction, in the absence of a request, constitutes reversible error. The jury was correctly instructed, in effect, that before defendant could be convicted it must find he knowingly aided and abetted his brother Glenn to kill Bolden unlawfully and feloniously. Of course, if defendant did not so aid his brother, whether because of physical incapacity or for any other reason, the instructions that were given required an acquittal. It would add little to the instructions to have said, in effect, that if defendant was physically unable to aid Glenn, of course he did not do so and the jury must acquit. In support of our conclusion, see State v. Hall,
[6] VI. Defendant challenges the sufficiency of the evidence. We think it sufficient to sustain the charge of manslaughter. Witnesses testified they saw three white men engaged in an altercation with a colored man outside the home of Rogers. Bolden (deceased) and Rogers were negroes. The Wilsons are white. There is also direct evidence that one of the three white men struck the negro with a club while the other two held him. Bolden died from a blow on his head. One of the witnesses said she heard Bolden ask Rogers to "get them off me." The record sufficiently identifies this defendant as one of the three white men engaged in the fight with the negro, Bolden, in which he was killed.
The three Wilsons, Bolden, Rogers, Ballinger, and McFarlin were the only ones present at the Rogers home at the time of the altercation which took place near a lilac bush where Bolden's body was found immediately afterward. Ballinger was sitting in a rocking chair in the house when the fight occurred. McFarlin was also in or near the house. Ballinger and McFarlin were the only white men present other than the three Wilsons. The record fairly eliminates both Ballinger and McFarlin (as well as Rogers) as participants in the homicide. *546
When the fight ended, Rogers, who was standing near his house, asked McFarlin to help him carry Bolden's body into the house. The three Wilsons were the only persons near Bolden's body when the altercation ended and Rogers and McFarlin picked up the body. When Officer Nevins arrived the three Wilsons were together in or near an automobile in front of the Rogers home. Defendant told the officer "there was a man hurt bad in the house. Glenn said there was a fight and I hit him." The officer then went in the house and saw Bolden dead.
There is evidence that a member of the Iowa State Guard in uniform passed by soon after the fight and inquired what was going on. Defendant replied, "None of your d — d business. Oh, you little boy scout, why don't you go home where you belong? Go on home before I knock your G — d d — d head off." Defendant then pushed the guardsman away with his elbow. Perhaps this incident in itself is entitled to but little weight. However, it seems inconsistent with the thought that defendant was a mere innocent bystander.
In the Glenn Wilson case,
*547All JUSTICES concur.