State v. Giudice

• Decision Date: 23 June 1915
• Docket Number: No. 30213.,30213.
• Citation: 170 Iowa 731,153 N.W. 336
• Parties: STATE v. GIUDICE.
• Court: Iowa Supreme Court

170 Iowa 731

153 N.W. 336

STATE

v.GIUDICE.

No. 30213.

Supreme Court of Iowa.

June 23, 1915.

Appeal from District Court, Mills County; Thomas Arthur, Judge.

The defendant was convicted of murder in the first degree, and appeals. Reversed and remanded.John J. Hess, of Council Bluffs, for appellant.

George Cosson, Atty. Gen., and John Fletcher, Asst. Atty. Gen., for the State.

LADD, J.

Howard Jones was employed in firing a switch engine at the yards of the Chicago & Northwestern Railway Company in Council Bluffs, and on the evening of May 27, 1913, shortly after 11 o'clock p. m., rushed into the foreman's office in the roundhouse with his throat cut. He was excited and tried to talk, pointed at his throat, and said “Dago, Dago,” seized a pen and tried to write, but fell on the floor and died before the physician reached him. The defendant, who is an Italian, had been employed by the railroad company, and on May 13th previous Jones had directed him to put a headlight reflector on an engine. Defendant refused to do so and was told by Jones that unless he did he would “turn him in to McCaw,” the general foreman. Subsequently Jones did so, and the defendant was suspended from employment. The theory of the prosecution was that defendant killed Jones in revenge. The errors assigned will be taken up in the order argued.

[1] I. The indictment was returned June 6, 1913, and five days later the defendant was arraigned and entered a plea of “not guilty.” A motion for change of venue from Pottawattamie county was filed on the 13th of the same month, and on the 16th of June the court ordered the cause to be transferred to the district court of Mills county and “specially assigned for trial before said court on Monday June 23, 1913, and that if the regular spring term has been finally adjourned that a special term be and is hereby called to begin on said day for such trial, and that if the regular term is still open, then court reconvene on said day for such trial, and that the jury be summoned forthwith to appear on said trial on said day. Any judge of the district court making any order with reference thereto which he may deem proper.” On the same day his honor, Judge E. B. Woodruff, one of the judges of the district, addressed an order to the clerk of the district court of Mills county directing:

That “the record show that such district court is adjourned until June 23d at 9 o'clock a. m. for the purpose of the trial of the case of State of Iowa v. Frank Giudice, alias Henry Wiley, and for the transaction of any other business that may come before the court.”

And another order was entered directing that 30 additional jurors, as provided by law, be drawn for the trial of said cause and summoned to appear at 9:30 o'clock June 23, 1913, and also that the original panel for the April term, 1913, not heretofore excused by the court, be summoned to appear at the same time. The record showed that the jurors in attendance at the said term drew their compensation on April 30th, and had not appeared thereafter until the morning of June 23d.

Appellant contends that the district court of Pottawattamie county, after having entered the order transferring the cause to Mills county, lost jurisdiction of the same, and that the portion of the order assigning the cause for trial on June 23d was without jurisdiction and deprived the defendant of a reasonable time within which to prepare for trial. While the district court of one county may not bind the court of another by entering an order with reference to the transaction of business in the other county, yet the portion of the order objected to had the effect of carrying to defendant notice of the time the cause would likely be called for trial, and this being true the order of the court of Mills county, upon convening June 23, 1913, that the trial proceed at once was without prejudice in not affording the defendant at least the intervening time to prepare for trial, and there is no showing whatever that this did not afford the defendant ample time in which to prepare for his defense.

[2] The order directing the drawing of 30 additional jurymen was not without jurisdiction, even if made in vacation, for section 347 of the Code expressly authorizes the judge either before or during the term to order as many additional jurors drawn for the trial of any particular case as may be deemed necessary. See State v. John, 124 Iowa, 230, 100 N. W. 193.

[3] Though the jurors of the original panel had drawn their compensation for services already rendered April 30th, they had not been finally discharged, and we know of no reason why the jury, when temporarily excused, may not be required to return and sit in any case properly before the court and not disposed of. State v. Phillips, 119 Iowa, 652, 94 N. W. 229, 67 L. R. A. 292. Such is the practice with grand jurors. State v. Disbrow, 130 Iowa, 19, 106 N. W. 263, 8 Ann. Cas. 190. As the jurors had not been discharged for the term, they were competent to sit in the trial of any cause which it might be found necessary subsequently to try, and there was no error in resummoning them for the determination of the case at bar.

[4] II. The defendant exercised all his peremptory challenges and now complains of the ruling of the court on challenges for cause as to several of the jurors. These jurors had read newspaper accounts concerning the killing of Jones and the connection, if any, of defendant therewith, and thereon had formed an opinion. None were acquainted with defendant, nor entertained bias or prejudice against him, nor had personal knowledge concerning the facts, and asserted that they were able to accord him a fair and impartial trial. Without reviewing the cases, it is enough to say that there was no abuse of discretion in overruling all the challenges for cause, save that about to be considered. State v. Young, 104 Iowa, 730, 74 N. W. 693;State v. Hassam, 149 Iowa, 518, 128 N. W. 960.

[5] III. The answer of H. B. Nutting for cause disclosed that he entertained a prejudice against the nationality of the defendant. He swore that prejudice against Italians was strongly fixed in his mind, and had been entertained for some time.

“Q. And if selected as a juror you would have a prejudice against this man because of the fact he is a member of the nationality to which he belongs? A. Well, only just as a nationality; yes, sir. * * * Q. And it would be in your mind always in the consideration of this case, would it not, the prejudice you entertain? A. Well, I would not let that hinder. Q. Isn't it a fact that the prejudice that you have would be with you during all this time? A. Yes, sir; I think so. Q. And it would be in your mind during your consideration of the entire case? A. It would.”

On further examination he stated that he would not carry the prejudice in the jury box with him, would disregard and lay it aside, and that he had “no particular prejudice against defendant, and if selected as a juror would try the case fairly and impartially.” After saying that he would continue to entertain the prejudice against the nationality, he was asked by the court:

“Do you think an Italian is entitled to a fair trial by this court? A. Certainly I do. Q. Can you give one a fair trial? A. Yes, sir.”

He stated farther that he had talked about the case and spoke about the prejudice mentioned.

“Q. Are you certain that you can entirely blot that (prejudice) out of your mind? A. Well, I don't think I could entirely blot it out of my mind. Q. And you are absolutely certain that you could blot it out and remove from your mind the prejudice you say you entertain? A. Well. Well, I would not promise that; no, sir. Q. You would not be willing to state that you would entirely remove from your mind the prejudice that you entertain against this man because of his nationality? A. No, sir.”

The challenge for cause was overruled. It will be observed that the juror did not indicate the nature of his prejudice, that he entertained none against the accused personally, and that he insisted that he could accord him a fair and impartial trial. In these circumstances the rule is quite well settled by the authorities that race prejudice will not disqualify the person called as a juror. In State v. Casey, 44 La. Ann. 969, 11 South. 583, the court said that:

“Race prejudice exists everywhere among all nations, who favor their own race and believe it is the favored and cherished race of the world. No man, because he thinks his own race superior to another, is disqualified as a juror on this account.”

In Bass v. State, 59 Tex. Cr. R. 186, 127 S. W. 1020, some of the jurors stated that they had a prejudice against the negro race socially, but not civilly or legally. This was said to have meant that they would not recognize negroes as companions or associates, but “had no prejudice against the race that would influence or affect their action in respect to any right or rights under the law.” In State v. Greene, 129 S. W. 700, objection to the juror was that he refused to drink with a negro, and it was said that the mere fact that the juror refused to put himself on a social level with the negro did not disqualify him to sit in the trial of the cause and render a fair and impartial verdict. In Johnson v. State , 130 N. W. 283 [Ann. Cas. 1912B, 965], the juror on voir dire stated that he had a feeling of prejudice against the colored race, but no prejudice against the defendant, and the court held that the so-called prejudice against the race was simply a feeling or belief that it was inferior to the white race, and that this fact would not affect his verdict, saying that:

“Without doubt many white men have the same feeling as did juror Manguld, but this alone has never been considered sufficient to disqualify them from acting as jurors in cases where colored men have been tried for criminal offenses.”

In State v. Brown, 188 Mo. 451, 87 S. W. 519, the juror stated that he had...