State v. Tyler

• Decision Date: 13 January 1904
• Citation: 97 N.W. 983,122 Iowa 125
• Parties: STATE OF IOWA v. CHESTER TYLER, Appellant
• Court: Iowa Supreme Court

97 N.W. 983

122 Iowa 125

STATE OF IOWA v. CHESTER TYLER, Appellant

Supreme Court of Iowa, Des Moines

January 13, 1904

Appeal from Jasper District Court.--HON. W. G. CLEMENTS, Judge.

THE defendant was convicted of murder in the first degree, and appeals.

Affirmed.

Woodson & Brown and C. O. McLain for appellant.

Chas W. Mullan, Attorney General, and Chas. A. Van Vleck Assistant Attorney General, for the State.

OPINION

LADD, J.

Somebody assaulted Dr. B. M. Failor on one of the streets of Newton at about eleven o'clock p. m., September 11, 1901. He was found soon afterwards, in a helpless condition, near the lumber yard of Jasper & Son, about one hundred and fifty yards south of the Chicago, Rock Island & Pacific Railroad Depot, and died at five o'clock the following morning. When found he was in a semiconscious condition, with several marks of violence on his head, his right eye swollen, discolored, and slightly bleeding, and also bleeding at the nose and mouth. There was also a bruise over the right temple extending back some four or five inches, and over an inch in width, within which was a wound or laceration about two inches above the ear. The physicians agreed that the blow causing this bruise might have been given by a club introduced in evidence. This club was seen near deceased before his removal to a house near by, and was picked up, with a dollar, a dime, and a nickel, near where he lay, about a half hour afterwards. His watch had been taken, but a portion of the chain was still attached to his vest. His trouser pockets were turned wrong side out. He had left a patient's house, where he had looked at his watch to ascertain the time, a few minutes before, and was last seen going in the direction of the place where found. The evidence tended to show that a fair was in progress at Newton; that defendant was seen loitering about the depot in the afternoon of September 11th; that he was seen at Jasper & Son's lumber yard at five minutes after nine o'clock on the evening in question, and closely watching the witness when passing. Another witness saw the accused between half past ten and eleven o'clock about thirty or forty feet north of the northeast corner of the lumber shed, with a club three and one-half or four feet long and as thick as the arm in his hand. As the witness passed, defendant stepped out on the sidewalk behind him. He was also seen in Newton the following day at about two o'clock in the afternoon. Some time afterwards, in a conversation with two miners in Des Moines, he stated that he was at the fair, and then added that a man had been murdered at Newton for his watch and money, and he wanted to get away from there, and did not want to be strung up for nothing. About the middle of September he showed Mattie Frazier, at the Klondike coal mines, near Des Moines, a gold watch, with Dr. Failor's name on the inside, fully identified as that of deceased, and asked her to keep it for him, advising her that he had won it at a game of craps at Colfax. She declined, and left it with a Mrs. Walker, who deposited it with her son-in-law for safe-keeping. At the instance of Mrs. Walker this man surrendered it to the officers some time in October. We have set out the evidence which is undisputed, and without other explanation, as the best response to appellant's contention that it does not sustain the verdict. It was sufficient to carry the case to the jury.

II. After the cause had been submitted to the grand jury, E. J. Salmon was appointed by the court, upon the recommendation of the county attorney, to assist in the prosecution, and "fully authorized to appear before the grand jury and in the court as such assistant prosecutor." In pursuance of this appointment "he was present before the grand jury during the investigation of the case against defendant, and took part in the proceedings by examining a number of witnesses," but was there at no time or in any way that would have been improper on the part of the county attorney. The statute makes it a ground for setting aside the indictment "when any person other than the grand jurors were present before the grand jury during the investigation of the charge, except as required or permitted by law" (section 5319, Code); and the defendant moved to have this done because of Salmon's appearance before the grand jury. Section 303 of the Code authorizes the county attorney, with the approval of the court, to appoint an assistant to aid him in the trial. Prior to the return of the indictment, however, there was no case for trial, nothing to plead or answer to, no issue joined. State v. Addison, 2 S.C. 356. This section does not seem broad enough to authorize the selection of an assistant before the grand jury. But prior to the enactment of any statute on the subject this court declared that the district court possessed the inherent power to appoint counsel, in absence of the prosecuting attorney, to appear before that body and represent the state at trials in his place and stead; saying: "It is a part of its [the court's] inherent power, necessary for its own protection and existence, essential to the administration of justice and the enforcement of the law, finding its support in the same reasoning which authorizes a court to punish for contempt, to appoint ministerial or police officers to carry out its mandates, and other similar acts." The same view was expressed in Dukes v. State, 11 Ind. 557 (71 Am. Dec. 370), and Mitchell v. State, 22 Ga. 211 (68 Am. Dec. 493). With the prosecutor present, the right to assistance has been vindicated by a long line of decisions. State v. Montgomery, 65 Iowa 483, 22 N.W. 639; State v. Fitzgerald, 49 Iowa 260; State v. Ormiston, 66 Iowa 143, 23 N.W. 370; State v. Shreves, 81 Iowa 615, 47 N.W. 899; State v. Crafton, 89 Iowa 109, 56 N.W. 257. In State v. Shinner, 76 Iowa 147, 40 N.W. 144, the rule is broadly stated that "in a proper case the court may permit an attorney to assist in the prosecution of an indictment without regard to the offense charged, even though he be not employed by the supervisors, and is not deputy of the county attorney." The people do not, by the election of a prosecuting attorney, surrender the right to employ other adequate means for the prosecution of criminals, nor avow that other counsel will not be employed whenever the occasion demands such a course. To deny such right might often lead to the defeat of public justice. In the forensic contest the defendant is at liberty to engage such assistance as he may choose, and the state should be in a situation to cope with the forces opposed with something like equality in professional ability and experience. The grounds for these conclusions will be found somewhat elaborated in Tull v. State, 99 Ind. 238; State v. Wilson, 24 Kan. 189 (36 Am. Rep. 257); People v. Blackwell, 27 Cal. 65; Edwards v. State, 47 Miss. 581.

The allowance of assistance before the grand jury, when required may be vindicated on precisely the same grounds. That the necessity therefor will seldom arise does not prove the want of authority, but that it should be cautiously exercised. The object to be obtained in any event is the more effective administration of justice. Attorneys are officers of the court, and the oath taken by them when admitted to practice is quite as full and complete as that of the county attorney. True, they execute no bond, but when acting as special counsel for the state their conduct is subject to review, and, should it be unbecoming as an officer of the court, a penalty may be imposed quite as severe as that nominated in the bond. Raymond v. People, 2...