166 Iowa 309 | Iowa | 1913
I. The indictment charged that defendant, “upon the body of Josephine Wilson, then and there being
II. The crime is alleged to have been committed September 25, 1912, and the indictment was returned October 24th, following. On the 14th of December, the defendant chal-
The auditor and the clerk prepare the ballots containing the names of all persons so returned, and from these the jurors are drawn. Section 338, 342, Code. The lists from which the jury was drawn were prepared at the general election of
It will be observed that that statute assumes, rather than requires, that the jury lists will be certified by the election judges, and so they should be in the orderly discharge of duty by these officers. But the requirement is not specified in mandatory language, and there is no reason for thinking that
In State v. Brandt, 41 Iowa, 593, but seventy-three names of persons to serve on the grand jury were returned, whereas the list should have contained seventy-five names, one township making no return, and two names were added by two of the supervisors neither of whom were drawn, and this was held not to justify setting the indictment aside, following State v. Carney, 20 Iowa, 82. In State v. Ansaleme, 15 Iowa, 44, jury lists were not certified and in two townships there was nothing to show which list was intended for grand jury and which for petit jury (the last in order being used for petit jury), and the court held the statutory provisions directory and approved of the action of the trial court in overruling the motion to set aside the indictment. In State v. Pierce, 90 Iowa, 506, the apportionment among the precincts was not entirely accurate, owing to changes in boundaries, and this was held not to be fatal to the indictment. This was on the ground that the statutes relating to the selection and return of jury lists are directory, and also that the court, being required to “examine the record, and, without regard to technical errors or defects which do not affect the substantial rights of the parties, render such judgment on the record as the law demands, ’ ’ found the defects therein not to affect the substantial rights of defendant. This was also a ground of the ruling in State v. Brandt, supra. As noted in State v. Hassan, 149 Iowa, 518, the defendant has no vested right in any particular jury list. “Substantial compliance with the law with reference to appointing, selecting, and drawing grand jurors is all that is required. ’ ’ State v. Edgerton, 100 Iowa, 63. True, all these decisions relate to the selecting and return
It is very plain that, in exacting the large lists from which to draw grand and petit jurors, the purpose was not to protect any right of defendant or other litigants. • Qualified jurors might readily have been drawn from a fraction of the number listed. The primary object is to distribute the burden of serving on the jury equitably among the inhabitants of the county. State v. Massey, 2 Hill (S. C.) 379; Sumrall v. State, 29 Miss. 202. In the last case, after stating the facts, the court said:
If therefore the name of any person already returned be omitted in the annual list, . . . or if the assessor should wholly fail to return an annual list as required by law, it will not vitiate the list of jurors, provided they are regularly drawn from the box No. 1; because the persons so drawn have been legally returned and enrolled as competent jurors, and it is no objection to their competency that other persons who should have been added to the list, in order that they might bear their part of the burden of such service, have not been regularly returned. The question is: Have those persons who have been duly drawn from the box as jurors been duly returned and entered as persons liable to such duty? And, if this be answered in the affirmative, it would be absurd to say that they were illegal jurors, except so far as the individuals should be found deficient in the legal qualifications, to be tried by the court when they should be impaneled as a jury. If this view were not correct, the greatest inconvenience and confusion might frequently occur by the errors or delinquency of the returning officers, and the administration of justice be de*317 layed or defeated by a narrow and literal interpretation of the statute in violation of its true spirit and intent. It would be to .apply a regulation which was merely intended to subject all persons in the county liable as jurors to the performance of that duty, and thus equalize the burden among the people, in such a manner as to render illegal persons duly returned, drawn, and impaneled, and thereby to embarrass and defeat the very system intended to be established.
The defendant has not the right to be tried before any particular jury. All that he can demand is that his triers be legally qualified and be chosen from those designated in the manner prescribed by law to perform that service. State v. Carter, 144 Iowa, 371.
What was said by McClain, J., in State v. Pell, 140 Iowa, 655, concerning grand juries, is especially pertinent:
It is surely not competent to defeat the indictment by showing that some particular persons, whose names might properly have been considered in making up the grand jury list, were in fact not taken into account by the board in making such list. So long as no names are placed on the grand jury list which could not have been properly included, and no classes of persons are excluded to defendant’s prejudice, there is at least a substantial compliance with the statute, and this is all that can be required.
That the names of persons qualified to serve as jurors were omitted from the jury list did not disqualify those who were returned, and there is no pretense that the names under the heading “for petit jurors” in the pollbooks not certified were not qualified jurors residing within these respective voting precincts. If any such were included, they were subject to challenge for cause. The election judges thereof solemnly swore that they would discharge their duties faithfully and impartially, and the presumption is that they did so, even though they did not expressly certify that they had done so. We think that, in the absence of any showing of fraud or of the inclusion of improper names in the list not expressly cer
Not only was there no showing that any were included in the list who were not qualified, but it affirmatively appeared that none of the jurors who actually served resided in the township where the certificates were unsigned, and that every juror wás actually qualified. A construction which would say that, under these circumstances, defendant was prejudiced by the irregularities mentioned, would be intolerable. The challenge of the panel was rightly overruled.
III. Exception is taken to> the twenty-first instruction, which reads:
It is a general rule of law that voluntary drunkenness or intoxication is no defense or excuse for crime. But when a specific intent is necessary to constitute a crime, intoxication of the alleged perpetrator may be taken into account in determining whether he was capable of entertaining such intent; that is, if you find from the evidence that, at the time of the alleged shooting of deceased, the defendant was intoxicated. You are therefore instructed that if you find that defendant*319 at the time of the alleged shooting was intoxicated, and was so far intoxicated, or under the influence of intoxicating liquor, to such an extent, as to be incapable of willfulness, premeditation, or deliberation, or of having a specific intent to take the life of said Josephine Wilson, if he did take her life, then and in such case you would not be justified in finding him guilty of murder in the first degree.
This is said to be erroneous in that intoxication as a defense is limited to murder in the first degree, and no reference was therein made to included offenses. If anything is well
At the common law, degrees of murder were not recognized, and a specific intent to kill was not essential. Any killing with malice, either express or implied, without justification or excuse, was murder, and voluntary intoxication, however excessive, did not constitute a defense, nor did it excuse or mitigate the offense. In People v. Rogers, 18 N. Y. 9, 14 (72 Am. Dec. 484), the English authorities are reviewed by Denio, J., so entertainingly that we quote:
We find it laid down as early as the reign of Edward VI (1548) that ‘if a person that is drunk kills another, this shall be felony, and he shall be hanged for it; and yet he did it through ignorance, for when he was drunk he had no understanding nor memory; but inasmuch as that ignorance was occasioned by his own act and folly, and he might have avoided it, he shall not be privileged thereby.’ Plowden, 19. The same doctrine is laid down by Coke in the Institutes, where he calls*320 a drunkard voluntarnos demon, and declares that, ‘whatever hurt or ill he doeth, his drunkenness did aggravate it.’ 3 Thomas ’ Coke, 46. So in his Reports it is stated that ‘ although he who is drunk is for the time non compos mentis, yet his drunkenness does not extenuate his act or offense, nor turn to his avail; but it is a great offense in itself, and therefore aggravates his offense, and doth not derogate from the act which he did during that time; and that as well in eases touching his life, his lands, his goods, or any other thing that concerns him. ’ Beverley’s Case, 4 Co. 125a. Lord Bacon, in his Maxims of the Law, dedicated to Queen Elizabeth, asserts the doctrine thus: ‘If a mad man commit a felony, he shall not lose his life for it, because his infirmity came by the act of God; but if a drunken man commit a felony, he shall not be excused, because the imperfection came by his own default.’ Rule V. And that great and human Judge, Sir Matthew Hale, in his History of the Pleas of the Crown, written nearly two hundred years ago, does not countenance any relaxation of the rule. ‘ The third kind of dementia,’ he says, ‘is that which is dementia affectata, namely, drunkenness. This vice doth deprive men of the use of reason,-and puts many men into a perfect hut temporary phrenzy; and therefore, according to some civilians, .such á person committing homicide shall not he punished simply for the crime of homicide, but shall suffer for his drunkenness, answerable to the nature of the crime occasioned thereby, so that yet the primal cause of the punishment is rather the drunkenness than the crime committed in it; hut by the laws of .England such a person shall have no privilege by his voluntarily contracted madness, but shall have the same judgment as if he were in his right senses. ’ He states two exceptions to the rule, one where the intoxication is without fault on his part, as where it is caused by drugs administered by an unskillful physician, and the other, where indulgence in habits of intemperance has produced permanent mental disease which he calls ‘fixed phrenzy.’ 1 Hale, 32. Coming down to more modern times, we find the principle insisted upon by the enlightened Sir William Blackstone. ‘The law of England,’ he says, ‘considering how easy it is to contract this excuse, and how weak an excuse it is (though real), will not suffer any man thus to privilege one crime by another.’ 4 Com. 26. A few recent cases in the English courts will show the consistency with which the rule has been followed down to our own times.
The unexplained killing of a human being with a deadly weapon is presumed to have been with malice and is murder in the second degree under the statutes of' this state, and the burden of proof is on the state to raise the offense to murder in the first degree. State v. Hayden, 131 Iowa, 1, 8. To accomplish this, deliberation and premeditation with á specific intention to kill must be established. This being shown, intoxication furnishes no defense, but it may be proven as bearing on whether the accused in fact acted with deliberation,premeditation, or intent to kill. If he were in such stupor that he was incapable of deliberation, premeditation, or of forming a specific design, it is manifest that he could not have been guilty of the offense of higher degree.
This principle is stated clearly in Wilson v. State, 60 N. J. Law, 171, 184 (37 Atl. 958) :
• The true rule, in my judgment, to be deduced from a mass of authorities, is that there is a situation in which the fact of drunkenness is entitled to weight, not as an excuse for crime nor in extenuation of it, but as a fact tending to show that the crime imputed was not conqnitted. When the character and extent of a crime is made by law to depend upon the state and condition of the defendant’s mind at the time, and with reference to the act done, intoxication, as a circumstance affecting such state and condition of the mind, is a proper subject for inquiry and consideration by the jury. If, by law, deliberation and premeditation are essential elements of the crime, and, by reason of drunkenness or any other cause, it appears that the prisoner’s mental state is such that he is incapable of such deliberation and premeditation, then the crime has not been committed ; there is a failure on the part of the state to prove the crime into which premeditation must enter. Intoxication is a mere circumstance to be considered in determining whether premeditation was present or absent. As between the two offenses of murder in the second degree and manslaughter, voluntary intoxication cannot be a legitimate subject of inquiry. What constitutes murder in the second degree by a sober man*322 is equally murder in the second degree if committed by a drunken man.
The rule is thus stated in Garner v. State, 28 Fla. 113, 154 (9 South. 835, 845, 29 Am. St. Rep. 232).
Where a premeditated design to effect the death of the person killed or of some human being is essential to the offense of murder in the first degree, which it is in this state, drunkenness or intoxication, though voluntary, is relative evidence to be considered by the jury as affecting the capacity of the accused, at the time of the killing, to form a premeditated design to effect the death of the person killed or any human being. If a jury find from the evidence that the defendant was at the time of- the killing so much intoxicated as to be incapable of forming a premeditated design, or of deliberating sufficiently to form such a design to take the life of the deceased or any human being (Savage & James v. State, 18 Fla. 909), and yet that, but for this incapacity, the defendant would be guilty in the first degree, they cannot find him guilty of murder in the first degree, because such premeditation is essential to the offense of murder in the first degree, as any other element of it.
If the accused, at the time of committing homicide, was so drunk as to be incapable of premeditation or of forming any deliberate intent, and there is no evidence of having premeditated the crime prior to becoming intoxicated, murder in the-first degree is not made out; but, as said in Aszman v. State, 123 Ind. 347 (24 N. E. 123, 8 L. R. A. 33) : “No degree of mental disturbance produced by voluntary intoxication will of itself, disconnected from sudden heat or other circumstances, avail to reduce the crime to a lower grade, unless such a diseased condition of mind has followed the habit of intoxication as to render the accused incapable of distinguishing between right and wrong, or of controlling his conduct when free from the influence of intoxicating drink.” This was quoted with approval in Gustavenson v. State, 10 Wyo. 300 (68 Pac. 1006); the court adding: “Intoxication is a mere circumstance to be considered in determining whether
As pertinently observed in Willis v. Com., 32 Grat. (Va.) 936: “Voluntary immediate drunkenness is not admissible to disprove malice, or to reduce the offense to manslaughter. But where, by reason of it, there is wanting that deliberation and premeditation which are necessary to elevate the offense to murder in the first degree, it is properly ranked as murder in the second degree.” State v. Cather, 121 Iowa, 106, is not inconsistent herewith, for there the instruction was held erroneous, not for omitting reference to included offenses, but to those involving a specific intent. The language in State v. Williams, 122 Iowa, 115, is not as definite as it might have been; but the matter under consideration was whether the jury should have been instructed that intoxication, if such as to render the accused incapable of forming a specific intent to kill, would obviate conviction of murder in the first degree, and in saying that the jury should have been instructed “that his intoxicated condition, if shown, should also be considered by them as bearing upon the degrees of the offense, ’ ’ had reference to the degrees of murder, or to an included offense in which a specific intent was essential.
“Manslaughter” is not a degree of murder, but an included crime. State v. White, 45 Iowa, 325.
All held in State v. Dorland, 103 Iowa, 168, was that in
IV. Instructions 21 and 22 requested, in so far as correct, were included in those given. The twenty-seventh instruction, refused, was to the effect that, if the defendant and his
Instruction 29y2, given, properly guided the jury in considering this difficulty. It read: “It is proper for you to take into consideration as bearing on the question of malice
Instruction 9, requested, assumed that there was no direct evidence of the offense. Several witnesses.testified to
Instruction 26 was properly refused, for that it limited the consideration of the defendant’s threat solely
Moreover, it purported to specially instruct the jury, and might well have been omitted on that ground.
Y. One of the grounds of the motion for a new trial and in arrest was that there was no evidence that death was in
But counsel for appellant in his opening statement to the jury said they have ‘ ‘ doctors to prove to you that a woman was shot.and killed. We know it. What do they need that evidence for? We admit that the woman is dead, and that
Such admissions are in the presence of the accused, and, if he interposes no objection thereto, are presumed to have been with his consent. State v. Kinney, 21 S. D. 390 (113 N. W. 77); Godwin v. State, supra; People v. Garcia, 25 Cal. 531.
The court might well have assumed the fact so admitted as proved. Hill v. State, 42 Neb. 503 (60 N. W. 916) ; State v. Kinney, supra; State v. Ross, supra; State v. Archer, 73 Iowa, 320; State v. McKnight, 119 Iowa, 79; State v. Anderson, 154 Iowa, 701. In thus disposing of the point raised, it is not to be assumed that we entertain any doubt as to the sufficiency of the circumstance proven to warrant the inference that death resulted from the wounds inflicted by the shots from the revolver.
We discover no error in the record, and the judgment is — Affirmed.