State v. Burris
| Decision Date | 17 October 1922 |
| Docket Number | No. 35004.,35004. |
| Parties | STATE v. BURRIS. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Wapello County; F. M. Hunter, Judge.
Defendant was convicted of murder in the first degree and sentenced to be hanged. He appeals. Reversed.W. W. Epps, of Ottumwa, for appellant.
Newton W. Roberts, Co. Atty., and W. L. Simmer, both of Ottumwa, and B. J. Gibson, Atty. Gen., for the State.
Appellant is a colored man 29 years of age. At the time of the trial he had lived in Ottumwa about 10 years, had been married about 6 years, and was the father of three children. During the time he had lived in Ottumwa his business had mostly been working with automobiles, as chauffeur and mechanic. For some time prior to the homicide in question he had been engaged in the taxi business; his mother-in-law having helped him to purchase a car. Hattie Bates was a married woman. She and her husband were separated, and she was living with her sister, a Mrs. Allen, in Ottumwa. About October, 1921, the appellant began calling at the Allen home and from that time on he and Mrs. Bates were together frequently and their relations were intimate. Some time in the fall or early winter of 1921 the appellant purchased an automatic Colt revolver which he carried with him thereafter. His explanation of the purchase of the revolver was that in his business as a taxi driver he was frequently called upon to be out at night and to take drives in the country, and that he frequently had money on his person, and that he secured the revolver for his own protection. It appears that various taxi drivers in the city of Ottumwa had headquarters at what is referred to in the evidence as the “taxi shanty,” where there was a telephone, and at which place they received calls for their services. In the afternoon of December 17, 1921, the appellant and one Nosley were at the “shanty,” when Nosley received a telephone message from appellant's wife. At that time Nosley said to the appellant something to the effect that the latter would owe him a dollar; that his wife telephoned Nosley to take her some place, and appellant replied, in effect, “She has got the money; let her pay her own bills.” Nosley took his car and got Mrs. Burris and took her out to the home of Allen, where Mrs. Bates lived. Shortly after that the appellant drove out to the Allen home. At that time Mrs. Bates, her sister Mrs. Allen, the appellant's wife, and one Charlie Johnson were at the house. They were all colored people. The evidence tends to show that when the appellant arrived he entered the house and addressed his wife, saying, “I have come to straighten up these lies you have been telling about me.” There was considerable conversation between the parties, during which time appellant was called to the telephone. His wife said to him, “You have got that old gun in your pocket now,” to which appellant said “No; I haven't; it's in the car.” His wife said to him, “I am through with you, take the car home, get your clothes, and go to Mrs. Bates,” and Mrs. Bates said, “I don't want you; you have lied to me, so stay with your wife.” Thereupon appellant said, “You call me a coward; I am going to do the cowardly act,” and with that he drew the gun from his pocket. It was immediately discharged, the bullet striking Hattie Bates in the abdomen. Appellant's wife jumped from her chair, and three more shots were fired, all of which were in the general direction of appellant's wife. Mrs. Bates was taken to the hospital, where an emergency operation was performed, and it was found that the bullet had severed a large artery in the abdomen from which there had been profuse bleeding, and she died within a few hours. After the shooting appellant left the house and drove directly to the courthouse and surrendered himself to the sheriff and delivered to him the gun with which he had done the shooting. Appellant testified in his own behalf that he had no intention of shooting, but that he pulled the gun out for the purpose of scaring the parties, and that he held the gun down with both hands and jerked it around and it went off, and that he had no intention to purposely fire it. We have not attempted to set out the details of the evidence as related by the various witnesses. There is comparatively little conflict in the testimony as to what took place at the Allen house, and the foregoing is the general substance of the evidence of the transaction sufficient for the consideration of the questions at law involved in this appeal.
I. Appellant moved to quash the indictment on the ground that the grand jury which found the same had not been drawn in the manner provided by law. Wapello county is a county having a population in excess of 20,000, and contains the city of Ottumwa, having a population in excess of 15,000. The statute provides that in such counties the jurors are to be chosen by a jury commission. The original act providing for the creation of a jury commission is chapter 267 of the Acts of the Thirty-Seventh General Assembly. It provides that in all counties having a population exceeding 20,000 in which there is a city having a population of 15,000 or more the judges of the district court shall, on or before the 1st day of October in each year, select and appoint three competent persons as a jury commission. The commission shall, after its appointment, and before the 10th day of October in each year, qualify by taking an oath of office, and shall hold office for the term of one year and until their sucessors are duly appointed and qualified. The commission shall meet on the first Monday after the 10th day of November in each year and select grand and petit jurors for the year beginning the 1st day of January next after the meeting of such commission.
Chapter 211 of the Acts of the Thirty-Eighth General Assembly amended the preceding section by striking therefrom the words “first Monday after the 10th day of November in each year,” and inserting in lieu thereof the words “second Monday after the general election in each year when such election is held and the first Monday in November each year when no general election is held.”
Chapter 278 of the Acts of the Thirty-Ninth General Assembly again amended this section with regard to the time of meeting of the commission by striking therefrom the words “and the first Monday in November in each year in which no general election is held,” and also by striking out the words “year” and “annual,” as appears in said chapter, and inserting in lieu thereof “two years” and “biennial,” so that as finally amended this section provides for a meeting of the commission once in two years and the selection of jury lists for a biennial period. This last statute went into effect July 4, 1921.
The appellant's contention is that under the statute there was no jury commission in existence for the year 1921, because of the provision of the statute that the judges shall appoint the jury commission on or before the 1st day of October in each year, that the commission in Wapello county was appointed in the year 1920, and that no such commission was appointed on or before the 1st day of October, 1921.
[1] By section 4 of chapter 267 of the Acts of the Thirty-Seventh General Assembly it is expressly provided that the commission, after their appointment, shall hold office “until their successors are duly appointed and qualify.” No question is raised but that the jury commission was duly appointed and did duly qualify in the year 1920. If no new commission was appointed by the judges prior to October 1, 1921, the commission that was duly appointed in 1920, and that qualified in that year, would hold under the statute for the term of one year and until their successors were duly appointed and qualified. Under these provisions of the statute, the commission appointed before October 1, 1920, that had duly qualified, when no successors had been appointed, were authorized, under the terms of the statute, to act as a jury commission in the year 1921 and to prepare jury lists in said county for the year 1922. This was evidently the purpose and intent of the Legislature. In any event the commission was a de facto commission, and its act in preparing jury lists in 1921 for the year 1922 was not invalid and void. The record shows that the commission used the jury lists prepared by them in the year 1920 as the lists for the year 1922. The amendment to the statute, as enacted by the Thirty-Ninth General Assembly, provides that the commission shall meet biennially in the same years as the general election and prepare the jury lists for the two-year period. This amendment did not go into effect until July 4, 1921, but the commission that had been appointed in 1920 and had prepared a list that year met in 1921 and used the jury lists that had been prepared in 1920 for the year 1922. This was, in practical effect, carrying out, as nearly as could be, the plan provided for by the enactment of the Thirty-Ninth General Assembly, providing that the commission should meet on the first Monday after the 10th day of November and prepare lists for a biennial period. In the instant case the evidence shows that the jury commission did not meet until some time in December, 1921, at which time they authorized the use of the jury lists that had been prepared the year before. As before stated, the jury commission appointed in 1920 had power to act in the selection of the jury lists in the year 1921 for the year 1922, inasmuch as no successors had been selected or qualified, and the adoption by the commission at the meeting in 1921 of the lists which had been selected by the commission in 1920 was at least a recognition of the intent of the Legislature as expressed by the amendments to the statute adopted by the Thirty-Ninth General Assembly. It was not a substantial departure from the provisions of the law. The commission readopted the lists for 1921 that had been...
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