State v. Billings

• Decision Date: 14 May 1889
• Parties: STATE v. BILLINGS.
• Court: Iowa Supreme Court

77 Iowa 417

42 N.W. 456

STATE

v.BILLINGS.

Supreme Court of Iowa.

May 14, 1889.

Appeal from district court, Bremer county; G. W. RUDDICK, Judge.

The defendant was indicted for murder of the first degree. Upon the trial of the indictment the defendant was convicted of murder of the second degree, and from a judgment on the verdict he appeals.

GRANGER, J., dissenting.W. L. Eaton, C. Wellington, E. M. Billings, and M E. Billings, ( pro se,) for appellant.

John Y. Stone, Atty. Gen., and E. A. Dawson, for the State.

GRANGER, J.

1. At the impaneling of the grand jury that returned the indictment one Bockhouse was examined as to his qualifications, and error is assigned as to the rulings of the court in permitting him to remain as a member of the panel. The juror is of foreign birth, and it is evident he did not at all times fully understand the import of the questions, and in some cases, we think, his answers did not exactly express his purpose. He resided some 17 or 18 miles from Waverly, where the homicide occurred, and where the court was sitting. The material part of his examination is as follows: “ Counsel for Defendant. Question. Mr. Bockhouse, isn't it a fact that you have said frequently, at your own town of Tripoli, that you believed Mr. Billings to be guilty of murder? Answer. I have said like this: If he done the shooting, of course he was guilty. Q. That is not an answer to my question. A. That is the only thing that I remember that I have said. Q. Isn't it a fact that you have said, and said frequently, in your own town, you believed Mr. Billings was guilty of murder? A. I don't know how to answer that. I don't know that. I couldn't said that he was. Q. Haven't you said that you believed he was? A. Why, I might have said so on the first, by the saying that some talked. I might have said that. I don't know, though. Q. Haven't you said besides, frequently, that in your opinion he ought to be hung? A. No; I don't think I have. Don't remember of as I have said that. Don't know as I have said any more than any man that murdered in such a way as that, I thought, ought to be hung. I think that is the way I have said it. Don't think I said that frequently. Never talked with people over there very much in regard to this matter. Q. Haven't you said that you would be glad to help hang him? Said it in your own town? A. No more than just what I say. If he was the man that shot Mr. Kingsley, that he ought to be hung. I don't know but I would help hang him if I was right there. Some such remark. Q. You have said you would help hang him if you were right there? A. Yes, sir; if he was in the wrong. Q. Haven't you said you believed he was in the wrong, and you would be glad to help hang him, or that in substance? A. I never said I would be glad to help hang him. Don't remember that I said I was going to help hang him. Don't think I ever said that. I won't swear to it; but don't think I ever said that. Don't think there has been much talk over at Tripoli about hanging him. I believe some talk in regard to lynching him. Think I heard such talk. Think I have talked with others. Court. In your talk with others there, did you say that you would participate in any attempt to lynch him? Did you say you would do anything of that kind? A. No; no, sir; no; I don't think I ever said any such thing. Court. Do you mean to say that you have formed no opinion upon the question of guilt or innocence of Mr. Billings on the charge of murder? A. I say that I have formed no opinion. Q. Do you mean to say that you have expressed no opinion upon that question? A. I haven't formed any opinion. Court. I ask you about your expression now. Have you expressed any opinion of that character? A. You mean whether I expressed my opinion whether he was guilty? Court. Yes, sir; guilty or innocent. A. I don't know that I have said that he was guilty; not that I remember. Court. You don't remember that you have made any such expression? A. I don't remember that I made any such expression, that he was guilty. Court. Is your state of mind such that you could investigate the charge for which he is held here with entire candor and fairness? A. Well, it is so I want to hear a good deal more about it than I have before. Court. No; but would you investigate it fairly, candidly, and impartially? Of course, it is here for the purpose of investigation. A. I mean, before I could pass my opinion, I would want to hear a good deal more than I have. Court. I want to know whether or not you can take part in that investigation impartially, for the purpose of determining from the evidence the fact, free from any prejudice that you have had heretofore, if you ever had any. A. Yes, sir; free from any prejudice, I could take part.”

It is true, the juror had been in the midst of strong excitement, and where there was evidently a conviction as to the guilt of the defendant, as must be the case where there is talk of lynching. One expression of the juror, as “Think I talked with others,” in the connection in which it appears, tends to show that he talked with others of lynching. If satisfied of the fact that he counseled or favored such a proceeding, we should hesitate much before allowing an indictment found by the vote of such a grand juror to stand. From all the testimony of the grand juror, we do not think such is the fact. He was undoubtedly present when there was talk on that subject, and talked himself; but the evidence does not show that he counseled any such step, or favored it. His examination by the court evidences a state of mind reasonably free from any prejudice or conviction that should disqualify him from acting as a grand juror. As to the juror's having formed an opinion that would disqualify him, the action of the court in overruling the challenge has strong support in the case of State v. Shelton, 64 Iowa, 333, 20 N W. Rep. 459, and we think the holding correct.

2. One Wile, upon examination as to his qualifications as a grand juror, was challenged by the defense, and the challenge sustained, and, under instructions from the court, took no part in the case; but his place on the panel was not supplied, and the failure to supply his place is assigned as error. Under the present law a grand jury for Bremer county is composed of five members, and the concurrence of four is necessary to the finding of an indictment. Hence, as to this case, but four of the five members of the grand jury took part, all of whom must concur to legally present the indictment, and it is urged to us that the defendant was entitled to the presence and deliberations of a full panel. Inasmuch as we regard the question as settled upon authority, our reasoning upon it would be of little, if any, practical utility. Prior to January 1, 1887, a grand jury was composed of 15 members, and the concurrence of 12 was essential to the validity of an indictment. The same reasoning that would entitle a defendant to a full panel under the law as it now is would have entitled a party under the law as it then was to a full panel; the line of argument being that it cannot be known what would have been the effect of the influence and deliberations of the absent members as to those present, and that with a full panel an indictment might not have been found. The argument is not without force, but in the case of State v. Shelton, supra, 3 of the 15 members of the panel were excused from acting in the case because of challenges, and only 12 members took part, all of whom must concur to present the indictment. In that case this court held that the defendant was not entitled, as a matter of right, to the full panel in his particular case; that, the grand jury being legally impaneled, its organization was not affected by the absence of the three; and the indictment was sustained. We think that case ample support for the ruling of the district court in this case.

3. At the term at which the indictment was returned the defendant filed his motion to change the place of trial, on the ground of the prejudice of the judge. The defendant is a lawyer of many years' practice in Bremer county, which is and has been for many years the home of the presiding judge. The petition for the change is quite elaborate, describing with considerable minuteness many instances of defendant's experience in cases before the court, and his treatment by the court. Without any reference...