State v. Edgerton

• Citation: 100 Iowa 63,69 N.W. 280
• Parties: STATE v. EDGERTON.
• Decision Date: 09 December 1896
• Court: United States State Supreme Court of Iowa

100 Iowa 63

69 N.W. 280

STATE

v.EDGERTON.

Supreme Court of Iowa.

Dec. 9, 1896.

Appeal from district court, Warren county; J. H. Applegate, Judge.

The defendant was indicted for murder in the first degree, tried, found guilty of murder in the second degree, and appeals to this court. Affirmed.Powell & Ross, for appellant.

Milton Remley, Atty. Gen., H. McNeill, and Jesse A. Miller, for the State.

DEEMER, J.

The county auditor, in apportioning the number of grand jurors to be selected at the general election held in the year 1893, selected 75 names from the different precincts in the county, giving to each precinct not less than two names, and to some as many as eight. In one township, which cast 192 votes at the general election in the year 1892, he apportioned three names, and in another, which cast 189 votes, he gave four, while in another casting 247 votes, he apportioned five, and in another, which cast 275 votes, he gave four. This method of apportionment was made a ground of challenge to the panel of grand jurors made up from the list of names so apportioned, and is now complained of on this appeal. It appears that at the general election held in the year 1892, 4,378 votes were cast. The judges of election for the year 1893 were required to return 75 names. Dividing the total number of votes cast by 75, and we have 58 and a fraction as the number to be used in selecting the grand jurors to be returned from each precinct, for the statute at that time provided that “the county auditor shall apportion the number to be selected from each election precinct, as nearly as practicable in proportion to the number of votes polled therein at the last general election.” Code, § 236. Turning again to the record, we find that no precinct had a less number of names apportioned it than should be given if we use the number 58 as the divisor. But such an apportionment would not give the exact number required, and it is evident that the auditor added enough to the number thus found to the precincts indiscriminately to make the total of 75. Now, we have frequently held that a substantial compliance with the law with reference to appointing, selecting, and drawing grand jurors is all that is required. State v. Ansaleme, 15 Iowa, 44;State v. Knight, 19 Iowa, 94;State v. Brandt, 41 Iowa, 593;State v. Pierce, 90 Iowa, 506, 58 N. W. 891;State v. Adams, 20 Iowa, 486. The statute we have quoted does not require an absolutely accurate apportionment. It says the auditor shall apportion them as nearly as practicable in proportion to the number of votes cast in each election precinct. It would be impossible to have an accurate apportionment, based upon the number of votes cast, for reasons which are perfectly plain; and slight inaccuracies should not vitiate the panel. There was no such departure from the statutory methods in apportioning the grand jurors as to justify the defendant's challenge.

Another ground of challenge was that a large number of persons returned by the judges of election for grand jurors were over the age of 65 years, and were not, therefore, liable to serve as such. The argument in support of this ground is that the judges of election were required to select a list of persons competent and liable to serve as jurors, and that a person over the age of 65 years is not liable to serve. The provisions of our Code with reference to this subject are as follows: Section 234: “* * * Seventy-five persons to serve as grand jurors, * * * and composed of persons competent and liable to serve as jurors, shall annually be made in each county from which to select grand jurors. * * *” Section 228: “The following persons are exempt from liability to act as jurors: * * * All persons over 65 years of age.” Now, we have held that the exemption provided in the last section is a personal privilege, which may be waived, and that it is not a ground of challenge. State v. Adams, 20 Iowa, 486. The statute does not make such a person incompetent by reason of his age, and he is liable to serve, unless he claims his privilege, which is wholly personal to him. It follows, therefore, that the persons selected by the judges of election who were over 65 years of age were both competent and liable to serve as grand jurors, and that there is no foundation for this ground of challenge. The case of State v. Adams is conclusive on this subject.

2. The grand jury which indicted the defendant was called to consider his case specially. After they had deliberated about the matter for some time without concluding as to the degree of crime for which they should return a bill, some of the members of the panel asked the county attorney if they might consult the judge then presiding. They were informed that they could, and some four or five members went before the judge, and received advice regarding the law of murder. No claim is made that the judge gave any instructions or directions to the jurors who appeared before him except to explain the law applicable to the case. The complaint, as we understand it, is that the judge was in error in advising a part, and not the whole, of the grand jury; and that he had no right or authority to permit the grand jury to separate, and to advise a part, and not the whole, regarding the law of the case. It appears, however, that all the jurors who wanted any advice regarding the law of the case went before the court while in session, and there received their information. Our Code provides that “the grand jury may at all reasonable times ask the advice of the * * * court.” Miller's Code, § 4281. While this law no doubt contemplates that the grand jury, as a whole, should be present when the advice is given, yet we do not think that the procedure in this case was so irregular as to vitiate the indictment. No one contends that the judge did more than correctly expound the law relating to the crime of murder, and no possible prejudice could have resulted from his act.

3. The defendant filed a motion for change of venue, based upon prejudice of the people of Warren county against him, based upon certain newspaper publications of and concerning the shooting, and upon the fact that the family of the deceased was old, influential, respectable, and was scattered over the county of Warren, and had so worked on public sentiment as to cause prejudice against him. It appears from the showing made in support of the motion, that on the day following the death of the boy who it is claimed the defendant shot, the sheriff of Warren county, after consulting with the defendant's attorney, and with the Honorable A. W. Wilkinson, who was then holding court in Warren county, concluded it was advisable to remove the defendant to Des Moines, which he accordingly did. He was kept at Des Moines for a short time only, and was then returned to Indianola, where he remained until the day of trial, which was begun on March 15, 1895, more than five months after the shooting occurred. The newspaper publications referred to we cannot set out in full. It is sufficient to say that as a whole they are temperate in language, and, as a rule, contain nothing of an inflammatory nature. They are largely unembellished recitations of the facts as the editors were able to gather them, and in the comments upon the facts the writers generally counseled moderation and respect for law. True, something is said in some of them of mobs and lynching and necktie parties, but these matters were referred to as mere rumors, and were put in some of the papers with the evident intent of making the articles sensational. There is no evidence that there was any talk of mob violence except the fact that the sheriff removed the prisoner to another county, and it is evident he soon became convinced there was no danger, for he returned the prisoner in a few days. Some of the newspapers complained of the removal of the defendant from the county because of the stigma it might cast upon the community. The state met the defendant's showing by...