State v. Foster

• Citation: 59 N.W. 8,91 Iowa 164
• Parties: STATE v. FOSTER.
• Decision Date: 18 May 1894
• Court: United States State Supreme Court of Iowa

91 Iowa 164

59 N.W. 8

STATE

v.FOSTER.

Supreme Court of Iowa.

May 18, 1894.

Appeal from district court, Taylor county; R. C. Henry, Judge.

On November 27, 1887, the defendant was charged by indictment with having, on or about the 3d day of November, A. D. 1887, willfully, feloniously, deliberately, and premeditatedly, and of his malice aforethought, killed and murdered Emmett Reed. The defendant was tried, found guilty of murder in the first degree, and the penalty of death fixed by the jury. Judgment was entered on the verdict, and, on defendant's appeal, said judgment was reversed, and the case remanded, on the 8th day of May, 1890. 45 N. W. 385. At the September term, 1890, of the district court, the case was continued; and on December 11, 1890, the defendant filed his petition for a change of venue on account of excitement and prejudice against him in said county, which petition was verified by him on the 11th day of February, 1890. In support of this petition, defendant filed his affidavit, verified December 11, 1890, together with the affidavit of seven citizens of the county. Affidavits were filed by the state in resistance, and on December 13, 1890, the court overruled said petition for change of venue, to which defendant excepted. On December 15th, following, the case was called for trial to a jury, and on the 23d the jury returned their verdict, as follows: “We, the jury, find the defendant guilty of murder in the first degree, and fix his punishment to be imprisonment in the penitentiary, at hard labor, during his life.” The defendant moved to set aside the verdict, and for a new trial, for reasons stated, which motion was overruled, and judgment was entered against him on the verdict, from which judgment the defendant appeals.J. R. McCoun and Dale & Brown, for appellant.

John Y. Stone, Atty. Gen., and Thos. A. Cheshire, for the State.

GIVEN, J.

1. Several exceptions were taken in behalf of the defendant that are not urged in argument. We have examined all the exceptions taken, and find that only those urged in argument required consideration. Counsel presented on behalf of the defendant, with marked ability, all the questions arising upon the record that may be properly urged in his behalf. Appellant's first contention is that the court erred in overruling his petition for a change of venue. It is conceded that, under the statute and decisions of this court, the question of allowing a change of venue was addressed to the sound discretion of the district court, and that this court will not interfere with its decisions unless it appears from the record that that discretion was abused. In addition to the affidavits already mentioned, the defendant showed several articles published in newspapers of the county, of general circulation therein, during the summer and fall of 1890, with reference to this case, and to the conduct of defendant's counsel on the first trial. The state filed, in resistance, affidavits of nine citizens of the county. Several of those who made affidavits, and also three other citizens, were called and examined in open court as to the alleged excitement and prejudice. The evidence on this subject is quite lengthy, covering 40 pages of the abstract, and to here set it out, or discuss it, would unnecessarily consume space. It is sufficient to say that in our opinion it shows, beyond question, that at and before the first trial there was a prejudice in the minds of some of the people of the county against the defendant; that this prejudice was revived, to some extent, by the reversal of the case, and by the newspaper articles in evidence. Appellee contends that the application was properly denied, because not made in time. It will be observed that the case was remanded on May 8, 1890, was continued at the September term, 1890, and that the application for a change of venue was not filed untilDecember 11, 1890,--two days before the case was called for trial. Both abstracts show that the petition for a change was verified February 11, 1890. This must be a mistake, as the case was not then remanded. We conclude that it was on December 11th that the petition was verified. It is certainly true that whatever excitement or prejudice existed against the defendant was apparent months before the trial, and could have been known to any one within the county who cared to inquire. Appellant states, in explanation of the delay in asking the change, that he was confined in the penitentiary at Ft. Madison, and had no opportunity of knowing the feeling against him in the county. In view of this fact, we cannot say that the application should have been denied because of the delay in making it, even if it is true, as contended, that defendant's counsel resided in the county, and knew of whatever prejudice existed. It was not sufficient that excitement or prejudice existed against the defendant in the county, to entitle him to a change of venue. It must have been such excitement or prejudice as that, because thereof, he could not receive a fair and impartial trial in that county. Whether such excitement or prejudice existed was a question for the district court to determine. While, in our opinion, the evidence leaves no doubt but that there was prejudice in the minds of many persons in that county against the defendant, in relation to this charge, the evidence is conflicting as to whether it was such as that he could not receive a fair and impartial trial in that county. The district court, with all the evidence before it, decided against the application. While, upon the facts, we might have decided differently, we cannot say that the district court improperly exercised or abused its discretion, in determining, upon the evidence, against the defendant's application for a change of venue. See State v. Read, 49 Iowa, 85;State v. Perigo, 70 Iowa, 657, 28 N. W. 452.

2. P. Stevens, A. B. Wakeman, and John J. Jared, were separately called, and examined at length touching their qualifications to sit as jurors in this case. The defendant challenged each “for the reason that his conclusions are formed, and he has expressed an opinion, and, taking his whole evidence together, it shows that the opinion he has formed and expressed will prevent him from rendering a true verdict upon the evidence submitted to him on the trial.” Each challenge was overruled, and of these rulings the defendant complains. Paragraph 11, § 4405, of the Code, provides, as a ground of challenge for cause, as follows: “Having formed or expressed such an opinion as to the guilt or innocence of the prisoner as would prevent him from rendering a true verdict upon the evidence submitted on the trial.” It will be observed that knowledge of the case does not disqualify, nor does the fact of having formed an opinion. It is only such an opinion as would prevent the juror from rendering a true verdict upon the evidence submitted on the trial that disqualifies, or, as it is sometimes designated, an unqualified opinion. It does not appear that any of these jurors had any personal acquaintance with or knowledge of the defendant, or of the facts of this case. All that they knew of either was what they had heard or read concerning the case. Mr. Wakeman heard part of the testimony on the former trial. On the examination, each juror gave answers which, taken alone, might be construed as indicating an opinion such as would disqualify. The examination discloses the usual misunderstanding on the part of the jurors as to the distinction between a qualified and an unqualified opinion. The matter to be determined was whether any of them had formed or expressed such an opinion as to the guilt or innocence of the defendant as would prevent him from rendering a true verdict upon the evidence, and this was to be determined, not from any isolated answer, but from the entire examination. Taking the whole examination of each juror into consideration, it is apparent that while each had heard what purported to be facts in the case, and had formed and expressed more or less of an opinion thereon, it was not an unqualified opinion. When the questions were plainly put, and understood by the jurors, each answered directly that he had not formed an opinion such as would prevent him from rendering a true verdict on the evidence; and the whole tenor of the examination shows that, notwithstanding what these jurors had heard, and the opinions they had formed, they were each capable to decide the question of defendant's guilt or innocence upon the evidence. We think there was no error in overruling these challenges.

3. On the examination of a juror for cause, the following question was put to him by the county attorney: “Have you any preconceived opinions or notions against capital punishment, when the statute prescribes it, and the evidence is sufficient to warrant it.” The defendant objected, whereupon the county attorney claimed the right to so inquire, not as a ground for challenge for cause, but with a view to peremptory challenge. The court withheld decision until peremptory challenges were reached. After the jury had been passed for cause by the state, counsel for the state renewed the inquiry, to which defendant objected, and the objection was overruled. There was no error in the ruling. The state had a right to make this inquiry, with a view to exercising its peremptory challenge. State v. Dooley (Iowa) 57 N. W. 414.

4. Defendant having testified in his own behalf, and having examined a number of witnesses as to his general reputation for truth and veracity, and his general moral character, at different places where he had resided, the state, in rebuttal, called a number of witnesses. Defendant objected to the examination of several of these witnesses upon the ground that they were inquired of as to defendant's reputation in certain communities where he had lived, and as to his general moral character while residing in these communities; also, that...