State v. Archibald

• Decision Date: 24 June 1929
• Docket Number: 39238
• Citation: 226 N.W. 186,208 Iowa 1139
• Parties: STATE OF IOWA, Appellee, v. CAM ARCHIBALD, Appellant
• Court: Iowa Supreme Court

226 N.W. 186

208 Iowa 1139

STATE OF IOWA, Appellee, v. CAM ARCHIBALD, Appellant

No. 39238

Supreme Court of Iowa, Des Moines

June 24, 1929

REHEARING DENIED SEPTEMBER 30, 1929.

Appeal from Appanoose District Court.--GEORGE W. DASHIELL, Judge.

Defendant was indicted for the crime of breaking and entering a chicken house in the night of the 31st of July, 1925, with the intention of committing the larceny of poultry. From a verdict of guilty the defendant appeals.

Affirmed.

C. A Baker, for appellant.

John Fletcher, Attorney-general, Neill Garrett, Assistant Attorney-general, and W. B. Hays, County Attorney, for appellee.

GRIMM J. ALBERT, C. J., and EVANS, FAVILLE, and KINDIG, JJ., concur.

OPINION

GRIMM, J.

This case has previously been before this court. State v. Archibald, 204 Iowa 406, 215 N.W. 258. Many errors are claimed on behalf of the defendant, but only ten are presented in argument, and these may be grouped under a few general heads.

I. It is claimed that the court erred in the matter of impaneling the petit jury for the trial of the case. It appears that, when the case was reached for trial, the regular panel drawn for the term had been discharged, and a new panel was ordered by the court. The principal objection raised to this procedure is that the notice of the time and place of the drawing of the special panel, provided in Section 10879 of the Code of 1927, was not given to the ex-officio commission. The record made in connection with the drawing is as follows:

"The Court: You may let the record show that a new panel of 36 jurors was ordered by the court on Friday, the 3d day of February, to be drawn for jury service for the remainder of the January term and that, upon the convening of the court on the 7th day of February, at which time said jury was summoned to appear, excuses presented by the jurors drawn, and the failure of the sheriff to obtain services on some of the jurors drawn, reduced the panel present and available for jury service to 17; that the court at once ordered 25 additional jurors drawn from the regular list for service, not only for the purposes of this case, but for the balance of the January term of this court; that the jury box was filled from the jurors at this time available for the trial of any case pending in this court, and the parties directed to examine this jury for cause."

It is not claimed that the ex-officio members of the commission were not present, or that they did not properly perform their duty. The only objection is that the five-day notice, as hereinbefore referred to, had not been given. This was not necessary, under the circumstances as disclosed in the case. The record before us is silent as to whether the defendant exercised any or all of his peremptory challenges. The record is equally barren of any evidence on the question of any prejudice to the defendant by reason of the manner in which the jury panel was drawn. There is no showing that he did not have a fair jury. In State v. Burris, 194 Iowa 628, 190 N.W. 38, in passing upon an alleged error in the conduct of a jury commission which met in December, instead of November, as by law provided, this court said:

" The provision of the statute with regard to the date of the meeting of the jury commission is directory, and not mandatory, and the selection of the jury lists in December, instead of November, as provided by the statute, did not render such lists invalid and void. The meeting, although irregular, was not illegal or invalid; and, unless some prejudice is shown to have resulted from the failure of the jury commission to meet at the designated time, their action at a subsequent date was not invalid. As bearing on the question, see State v. Graff, 97 Iowa 568, 66 N.W. 779."

The foregoing is applicable to this case. It is fair to assume that the notice referred to was provided, largely at least, for the benefit and convenience of the members of the ex-officio commission. At all events, the ex-officio commission acted in this case, and there is no showing of prejudice.

II. Complaint is made of the cross-examination of Otto Whisler an accomplice in the crime charged. On the former trial appealed to this court, declarations of Whisler following the commission of the crime and in the absence of the defendant on the trial were held inadmissible. While Whisler was extensively cross-examined in the instant case, we find no record of evidence such as was held objectionable on the former appeal. We have read the record with care, and we find that all of the cross-examination permitted by the court was within the proper discretion of the court under such circumstances, and was all well calculated to...