State v. Harding

• Decision Date: 22 January 1891
• Citation: 47 N.W. 877,81 Iowa 599
• Parties: STATE v. HARDING.
• Court: Iowa Supreme Court

81 Iowa 599

47 N.W. 877

STATE

v.HARDING.

Supreme Court of Iowa.

Jan. 22, 1891.

Appeal from district court, Washington county; D. RYAN, Judge.

Indictment for assault with intent to commit murder. Verdict for an assault with intent to commit manslaughter, and, from a judgment thereon, the defendant appealed.Dewey & Eicher and E. W. Tatlock, for appellant.

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

GRANGER, J.

After deliberating more than 18 hours, the jury sent to the court the following: “There are two men that will not vote guilty on the second count, but say that, if you will send them written instructions, so that such a verdict will be in accordance with the evidence and your instruction, then they will so vote.” The jury thus came into court, and from questions by the court it learned that at least some of the jurors had not a clear idea of the distinction between an assault with intent to murder and an assault with intent to commit manslaughter, and the court, with considerable particularity, orally explained to them the difference, at times pausing to ask if all understood it, and, upon questions or suggestions by jurors, the court would explain further. The instructions, as orally given to the jury, were taken in shorthand by the reporter, and at the conclusion of the instructions (orally) the court said to the jury: “I will have this extended, so that you may have the benefit of it.” It then appears from the record that the jury was directed to retire for deliberation, and at once agreed upon a verdict, (the one returned,) and instructed the bailiff in charge to inform the court. The court, through the bailiff, directed the jury to wait for the written instructions. That, about an hour after the verdict was agreed upon and signed, the written instructions were received, read, and, by a vote, the verdict previously found was adhered to. Complaint is made of this action by the court.

Code, § 4420, fixes the order of trial in criminal cases, and, after argument by counsel to the jury, it provides: “(7) The court shall then charge the jury in writing, without oral explanation or qualification.” Code, § 4440, is as follows: “The court shall, on motion of either party, instruct the jury on the law applicable to the case, which must always be in writing, signed by the judge, and filed with the clerk, and so marked by him, and it is to be deemed a part of the record of the cause, and no oral qualifications thereof shall be permitted.” Section 4441 provides for the asking, in writing, of instructions to be given by the court, and that it may qualify such instructions “in writing, * * * but not orally.” It seems to us that the legislature has attempted, with much particularity of expression, to prevent the giving of oral instructions in criminal cases. In fact, it is not contended in the case but that written instructions are what the law contemplates, but it is urged that subsequently reducing the instructions to writing, and furnishing them to the jury, obviates any objection because of the manner of first stating them; that, after they were written, and given to the jury, they became a part of the original instructions given by the court. But the suggestion leaves out of view what to us is a very significant fact in the case, and...