State v. Anderson

• Decision Date: 15 June 1948
• Docket Number: 46996.
• Parties: STATE v. ANDERSON.
• Court: Iowa Supreme Court

33 N.W.2d 1

239 Iowa 1118

STATE v. ANDERSON.

No. 46996.

Supreme Court of Iowa

June 15, 1948

Rehearing Denied Sept. 24, 1948.

Appeal from District Court, Pottawattamie County; John A. Murray Judge. [Copyrighted Material Omitted]

John J. Hess, of Council Bluffs, and William P. Welch, of Logan Iowa, for appellant.

Don H. Jackson, Co. Atty., and David E. Stuart, Asst. Co. Atty., both of Council Bluffs, Robert L. Larson, Atty. Gen., and Clarence A. Kading, Asst. Atty. Gen., for appellee.

MANTZ Justice.

On September 5, 1946, the Grand Jury of Pottawattamie County, Iowa, returned an indictment wherein the defendant, James C. Anderson, was charged with murder in the second degree, in that the said defendant, 'On or about the 23d day of April, 1946, in the County of Pottawattamie and State of Iowa * * * did wilfully, feloniously, and with malice aforethought, kill one Marion Blythe, by wilfully, and feloniously using instruments and other means upon the person of Marion Blythe with the intent to procure a miscarriage on the said Marion Blythe, such miscarriage not being necessary to save the life of the said Marion Blythe.'

To this indictment the defendant entered a plea of not guilty. The case was tried, and on October 5, 1946 the jury returned a verdict, finding the defendant guilty of murder in the second degree. Thereupon the defendant filed a motion to set aside the verdict and grant a new trial; a motion in arrest of judgment; amendment to motion for new trial and exceptions to instructions and to the court's refusal to give requested instructions.

All of these motions were overruled and exceptions taken. Thereafter the court entered judgment on the verdict and sentenced defendant to serve a term of twenty years in the state penitentiary at Fort Madison, Iowa, and to pay the costs. Defendant appealed.

I. Appellant in this appeal has set forth numerous claimed errors. These were set forth in his original brief and argument filed in this court on August 11, 1947. On December 2, 1947, appellant, without permission from this court, filed an amendment to his original brief and argument. In this amendment some of the claimed errors as set forth in the original brief are amended and subdivided, others are elaborated upon. At the same time he filed an amendment to the record. This manner of presentation has been confusing. In some of the assignments no authorities are cited. Due to the nature of the case and its importance to defendant, we have carefully gone over the record and considered the various assignments. In this opinion we have not followed the order of the various assignments and arguments as set forth by appellant.

II. Appellant urges as error the ruling of the trial court wherein the challenges to four prospective jurors were overruled. The challenges were along similar lines, to-wit, for cause. Later, appellant argued that each of said tendered jurors had formed and expressed an opinion as to the guilt or innocence of appellant; also, that they were prejudiced and that the opinion which they had formed would prevent such jurors from rendering a true verdict, upon the evidence submitted on the trial.

The juror, Mamie Walker, stated that she was not acquainted with appellant; that she had read about the case in the papers and had discussed it with friends and acquaintances; that she thought she had formed an opinion as to the guilt or innocence of appellant. That she did not believe that such opinion would interfere with her acting as a fair and impartial juror and that she would listen to the evidence and the court's instructions and would return a fair and impartial verdict in accordance therewith. On cross-examination she said that if accepted as a juror she would take with her an opinion as to the guilt or innocence of the defendant and that it would take evidence to remove it. Thereupon, the defendant (appellant) challenged the juror for cause. The court then examined the juror:

'By the Court: Do you think you made up your mind with respect to the guilt or innocence of the defendant that it couldn't be changed by the evidence? A. No, I haven't.

'Q. Could you disregard the opinion that you have at present and try the case solely on the evidence that you are going to hear, that is going to be brought out, and the instructions of the court? A. I believe I could.

'Q. And that it what you would do if selected to sit as a juror? A. Yes, sir.

'By the Court: The challenge is overruled.'

Defendant excepts.

The record made as to the three other challenged jurors was substantially the same as that set out above. There was a challenge to each prospective juror. In each instance the challenge was 'We challenge the jury for cause,' or 'The juror is challenged for cause.' Each of the challenges was overruled by the trial court. The ground of the challenge was not specific and does not follow the rules laid down in some of our cases dealing with that matter. In the case of Haggard v. Petterson, 107 Iowa 417, 78 N.W. 53, 54, a juror was being examined as to his feeling or bias in the case. The challenge was in these words: 'The plaintiff challenges the juror for cause.' This court held that the challenge was too indefinite in not stating the grounds. Citing Davis v. Anchor Mut. Fire Insurance Co., 96 Iowa 70, 64 N.W. 687; Bonney v. Cocke, 61 Iowa 303, 16 N.W. 139, 140. In the last cited case challenge was made to certain jurors for 'cause'. This court in holding the challenge was insufficient said: 'An objection simply for cause is too indefinite, and it was correctly overruled for that reason; and this is also true as to a challenge without there is a statement of the ground upon which it is based.' See also Payne v. Waterloo, C. F. & N. Ry. Co., 153 Iowa 445, 133 N.W. 781; State v. Munchrath, 78 Iowa 268, 271, 43 N.W. 211.

The record tended to show that some of the prospective jurors had opinions as to the guilt or innocence of the defendant and stated that they got such opinion from having heard others talking of the case and from reading newspaper reports. None of them stated that any opinion held was an unqualified one, and all said that they would hear the evidence, be guided by the instructions of the court, and decide the case upon its merits.

Assuming for the purpose of the argument that the basis of the challenge was evident and the cause shown, still we hold that the challenge was not good. See State v. Rhodes, 227 Iowa 332, 288 N.W. 98; State v. Reed, 205 Iowa 858, 216 N.W. 759; State v. Harding, 205 Iowa 853, 216 N.W. 756. We call particular attention to the case of State v. Rhodes, supra. That was a murder case. There a prospective juror stated that he knew nothing which would prevent him from sitting as a fair and impartial juror; that he would carefully consider the evidence, would be guided by the instructions, and would base his verdict solely on the evidence introduced. Upon examination by the defendant he stated that he had read the newspaper accounts of the alleged crime and had heard the case discussed and had discussed it some; that he supposed what he heard and read was true; that from such he had some opinion as to the guilt or innocence of the defendant and that from such he had a fixed opinion and that such opinion would require some evidence to the contrary to remove it; that he supposed he could change such opinion if he heard evidence to the contrary; that if he heard no such evidence to change his opinion he would still have it during the trial. 'Q. And this opinion you have already formed would influence your verdict in this case if you sat as a juror? A. Well, it may.' [227 Iowa 332, 288 N.W. 100].

There was a challenge for cause, in that the juror had a fixed opinion as to the guilt or innocence of the defendant. Upon re-examination the prospective juror stated that his opinion was based solely upon what he had read in the newspapers; that he did not know if it was true or not; that he would give the defendant the benefit of the presumption of innocence and that he could lay aside his opinion and decide the case solely and entirely upon the evidence introduced on the trial of the case; that he thought he could and would do this. The trial court thereupon propounded to the prospective juror the following: 'Q. Do you feel that this opinion which you may have formed, would in any manner interfere with your rendering a fair and impartial verdict if you are chosen as a juror? A. I don't think so. Q. You don't think so? A. No. The Court: The challenge for cause is overruled.'

In the case of State v. Vatter, 71 Iowa 557, 32 N.W. 506 the court called attention to the distinction between a qualified and unqualified opinion of a prospective juror. The court held that the whole examination of the juror is to be considered.

We set out from the holding of the court in the Rhodes case, supra, as shown on page 338 of 227 Iowa, on page 101 of 288 N.W.

'The entire examination of Mr. Zenishek satisfies us that he had not formed an unqualified, fixed opinion as to the guilt of appellant. His opinion was based solely on hearsay and on the hypothesis that what he had read and heard was true. He repeatedly testified that he could and would lay aside his opinion and decide the case solely on the evidence and the instructions of the court. The fact that he had an opinion which would require evidence to remove does not, in the light of the entire examination of the juror, establish that he had formed an opinion as to the guilt of appellant that would prevent him from rendering a true verdict upon the evidence submitted on the trial of the case. State v Lawrence, 38 Iowa 51; State v. Bruce, 48 Iowa 530, 30 Am.Rep. 403; State v. Sopher, 70 Iowa 494, 30 N.W. 917; State v. Vatter, 71...