State v. Harding
| Decision Date | 13 December 1927 |
| Docket Number | 38592 |
| Citation | 216 N.W. 756,205 Iowa 853 |
| Parties | STATE OF IOWA, Appellee, v. DAVID HARDING, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED MARCH 17, 1928.
Appeal from Harrison District Court.--O. D. WHEELER, Judge.
A county attorney's information was filed against the defendant and his brother, Broy Harding, charging them with entering the premises of the Modale Savings Bank with intent to rob said bank. The defendant, David Harding, entered a plea of not guilty, and was granted a separate trial. From a judgment of conviction, upon a verdict of guilty, the defendant, David Harding, appeals.
Affirmed.
R. J Organ and William P. Welch, for appellant.
John Fletcher, Attorney-general, and Roy Havens, County Attorney for appellee.
WAGNER, J. EVANS, C. J., and DE GRAFF, ALBERT, and MORLING, JJ., concur.
The abstract contains the evidence of only one witness, the same not being necessary for the propositions which the appellant presents for our determination.
It is the contention of the appellant that the court erred in overruling his challenge for cause to one of the jurors. The defendant exhausted all of his peremptory challenges, using one of the same upon the juror as to whom he claims his challenge for cause should have been sustained. The juror, upon her voir dire examination, answered, in substance, that she had read about the case, but did not remember reading any article that purported to state the testimony; that she thought she had an opinion as to the guilt or innocence of the defendant; that she thought that it would require some evidence contrary to the opinion she then had, to change her mind; that, if selected as a juror, she would enter the jury box with that opinion in her mind; that said opinion would not in any manner control, or tend to control, her verdict, if she were selected as a juror; that she could try the case and determine it solely from the evidence, and could lay aside the opinion she then had, although her opinion would hold until she heard something different.
The ground for challenge was that the juror had a fixed opinion, and would continue to have until some evidence was introduced contrary to that opinion. The juror in question was qualified, unless she had formed or expressed such an opinion as to the guilt or innocence of the defendant as would prevent her from rendering a true verdict upon the evidence submitted on the trial. Section 13830, Code of 1924.
The court is vested with discretion in determining whether a juror is disqualified, and there is no reversible error unless abuse of discretion is shown. The answers of the juror negative the claim of the defendant that her opinion was fixed or unqualified. In State v. Williams, 197 Iowa 813, 197 N.W. 991, we held that the court did not commit error in overruling a challenge to a juror who had formed some opinion that it would require evidence to remove, it being shown that the opinion of the juror was not unqualified, and that she could lay the opinion aside, and try the case upon the evidence introduced. There was no abuse of discretion in the instant case on the part of the trial court. See State v. Teale, 154 Iowa 677, 135 N.W. 408; State v. Krampe, 161 Iowa 48, 140 N.W. 898; State v. Hassan, 149 Iowa 518, 128 N.W. 960; State v. Reed, 205 Iowa 858, 216 N.W. 759.
It is next contended by the defendant that the court, after overruling his challenge to the aforesaid juror, erred in that he refused him the right to examine the juror as to other matters that might affect her qualifications as a juror.
The trouble with defendant's position is that the proposition which he is now urging was not presented to the trial court, for he did not request or demand the right to examine said juror on other matters, after the aforesaid challenge was overruled. After the court overruled the aforesaid challenge, he told the juror to take her seat in the jury box, and then the defendant's attorney asked, "Do I understand the court to mean that I cannot examine these jurors at length?" And the court responded, "After you have made your challenge, you have rested on your challenge." It is true that, after the next juror had been called, and one question asked and answered, the defendant's attorney then said:
"Before this examination, I want this record to show that the defendant challenged the juror Eunice Mills upon her examination as to an opinion, and that by the ruling of the court now we are precluded from examining her upon any other matter that might affect her qualifications as a juror."
The record fails to uphold what the defendant's attorney dictated into the record; for since no request or demand was made to examine the juror as to other grounds of challenge there was not, and could not be, any ruling by the court substantiating what the defendant's attorney dictated into the record. After the court ruled upon the challenge, it was discretionary with the court as to whether he permitted further examination as to the ground of challenge urged; and the nature of the question asked by the defendant's attorney, and what he dictated into the record, were not sufficient to constitute a request or demand to examine the juror as to other grounds of challenge. Had the attorney made a request or demand to examine the juror as to other grounds of challenge, it would then have been a matter requiring the ruling of the court, and, had the court granted him the right, upon request or demand, he would have no ground of complaint. And, had the court then ruled, refusing him the right, he would then have the question preserved which he is now urging. While it may be that the court was of the opinion that the examiner must examine as to all grounds of challenge before exercising the right of challenge, and assert all grounds of challenge at the same time, as the record stands we do not know what would have been the ruling of the court...
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