State v. Hunter
| Decision Date | 20 December 1902 |
| Parties | STATE v. HUNTER. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Ringold county; R. L. Parrish, Judge.
Defendant shot and killed one Homer Holland on a street in the town of Mt. Ayr on the 9th day of November, 1901. He was indicted, tried, and convicted of the crime of murder in the second degree, sentenced to imprisonment in the penitentiary for life, and from the judgment imposed appeals. Reversed.Henry & Miles and Miles & Steele, for appellant.
Chas. W. Mullan, Atty. Gen., and Chas. A. Van Vleck, Asst. Atty. Gen., for the State.
When the trial jury was being impaneled, and after the state had exercised eight peremptory challenges and the defendant seven, the following proceedings were had: The jury was then sworn. Complaint is made of the court's denial of defendant'srequest to exercise the further right of peremptory challenge. The material parts of the statutes involved in this complaint are as follows: “A challenge to an individual juror is * * * for cause or peremptory.” Code, § 5359. “The parties shall challenge alternately commencing with plaintiff, and the challenges for cause being first exhausted or waived, the parties shall then in turn in the same order exercise the right of peremptory challenge, in such manner as the parties may agree upon or the court order.” Id. § 3686. “If the offense charged * * * is or may be punishable with death or imprisonment for life the state and the defendant are each entitled to ten peremptory challenges.” Id. § 5365. “After each challenge which is allowed the vacancy occasioned thereby shall be filled before any further challenge is made, or any new juror thus introduced may be challenged for cause as well as peremptorily, if the challenges are not exhausted.” Id. § 5366. “The challenges of either party need not be all taken at once but separately, in the following order, to the panel; to an individual juror for cause; to an individual juror peremptorily.” Id. § 5367. “When twelve jurors are accepted they shall be sworn to try the issues.” Id. § 5369. Under substantially similar provisions it was held in Fountain v. West, 23 Iowa, 9, 92 Am. Dec. 405, that a peremptory challenge by a party simply counted as one of the number to which he was entitled, and that, after a challenge by the other party, he may use any remaining right of challenge, even as to a juror in the box, when the waiver was made. In Spencer v. De France, 3 G. Greene, 216, it appeared that a jury had been selected and accepted by the parties, and then dismissed until the next day, without being sworn. At the opening of the next session of court the following day, and before the jury was sworn, plaintiff challenged one of the jurors peremptorily. The court denied the right, and the plaintiff appealed. This court, as then constituted, held the trial court was in error in denying the challenge, and in the course of its opinion said, among other things: “We think counsel have a right to an unrestrained exercise of their challenges up to the very moment the jury are required to take the oath.” This language is somewhat qualified by other parts of the opinion, but these qualifications seems to have no reference to the facts now before us. These are our only previous pronouncements which in any way affect the question here presented. They establish two propositions: (1) That a waiver of a peremptory challenge does not amount to an acceptance of a juror already in the box; (2) that after a waiver of all challenges, but before a jury is sworn, there may be cases where a party who has not exhausted the number to which he is entitled may exercise a further one peremptorily. Of course, one entitled to peremptory challenges may waive the right, but the waiver, in order to be conclusive, must, as it seems to us, be a waiver as to all to which the party is entitled. If the waiver is of the right to exercise a single challenge, as in this case, we know of no reason for holding that the party is concluded thereby. The practice generally is to waive all when any waiver is made, and, where both parties waive, and there has been no change in the personnel of the jury or of environment, such waiver may well be held conclusive, although even in such a case we think the court might very well permit a party to exercise his right at any time before the jury is actually sworn, provided such party is acting in good faith, and not with intent to gain advantage, or to delay the trial of the cause. The order of challenge is fixed by statute, and, in any event, this order should be preserved. If that is done, we do not see how one may gain an advantage over the other by permitting him to interpose a peremptory challenge at any time before the jury is sworn. But we need not elaborate this point. It is enough to say that the statute gave the defendant 10 peremptory challenges, and the jury should not have been sworn until these challenges were either waived or exercised, and the jurors accepted, as provided in section 5369 of the Code, hitherto quoted.
The question narrows itself down, then, to the one issue: did the defendant waive his right to exercise the remaining peremptory challenges given him by the statute? The language used by his counsel clearly indicates that he did not. The remark was, “The defendant waives one more challenge.” Should this be construed to mean that he waived the two more given him by statute, and that, instead of waiving one, he waived three? Certainly not, unless there be some technical rule of construction which requires us to so hold. We have looked in vain for any such rule, and, in view of the character of the charge made in this case, it should be a very plain and conclusive one to receive our acceptance. As the defendant had an absolute right to exercise 10 peremptory challenges, unless he waived them, and as we have found he waived but one of the three of those remaining to him when he was called upon to act, it is clear that he was deprived of a right which the statute gave him, and that the court was in error in depriving him of that right.
The attorney general contends that no prejudice resulted, for the reason that defendant made no excuse for his waiver, and gave no reason why he should be permitted to exercise a further peremptory challenge. This position is unsound, for two reasons: First. Because a party entitled to exercise the right need not give any reason for doing so. This is the fundamental notion on which peremptory challenges are based. Second. The statute gives the right absolutely, and, if denied, prejudice is conclusively presumed. The authorities very generally hold that the right to exercise a peremptory challenge is not lost until the jury is sworn. State v. Pritchard, 15 Nev. 74;Jhons v. People, 25 Mich. 499;Munly v. State, 7 Blackf. 593;Beauchamp v. State, 6 Blackf. 308;Lamb v. State, 36 Wis. 427;People v. Kohle, 4 Cal. 198;State v. Peel (Mont.) 59 Pac. 169;Hendrick v. Com., 5 Leigh, 707;Hooker v. State, 4 Ohio, 348;Appeal of Hamper, 51 Mich. 71, 16 N. W. 236;People v. Carrier, 46 Mich. 442, 9 N. W. 487;State v. Spaulding, 60 Vt. 228, 14 Atl. 769; Lindsey v. People, 6 Parker, Cr. R. 233; U. S. v. Davis (C. C.) 103 Fed. 457;Drake v. State, 51 Ala. 30. There is no case to the contrary, unless it be Vance v. Richardson, 110 Cal. 415, 42 Pac. 909. But it will be noticed, in the first place, that that was a civil action, and that appellant was informed, before he made a waiver, that, if respondent waived, appellant would not be allowed another peremptory. It was said in that case that, as respondent waived, appellant suffered no prejudice, as he had been given a chance to exercise any objection he might have had to any of the individual jurors. The waiver in that case was general, and not of a single challenge, as in this case. The right of peremptory challenge is one of the safeguards of a defendant against an unjust conviction, and courts should permit the freest exercise of that right within the limits fixed by the legislature. It is, as Blackstone says (4 Bl. Comm. 353), “an arbitrary and capricious right, and it must be exercised with full freedom, or it fails of its purpose.” See, as further sustaining our conclusions, 1 Bish. New Cr. Proc. § 945.
2. Defendant claimed that he killed Holland in self–defense, and offered testimony to show that deceased, when he had lost his money at gambling, was a violent and quarrelsome man. This evidence was objected to by the state, and the objection was sustained. There was also evidence to show that at the time of the affray deceased had lost his money at the gaming table. This testimony should have been received. In State v. Collins, 32 Iowa, 36, it was held error to reject evidence that deceased, when under the influence of liquor, was quarrelsome, vindictive, ugly, and dangerous. The trial court in this case excluded the offered evidence on the theory that the character of the deceased under special or exceptional circumstances could not be shown; that nothing but his general character was involved. The Collins Case, to which we have just referred, clearly negatives that idea, for in that case the testimony offered was to show the character of deceased while under the influence of intoxicants. See, also, State v. Graham, 61 Iowa, 608, 16 N. W. 743; Whart. Cr. Ev. (9th Ed.) §§ 69–84, inclusive, and cases cited; Harrison v. Com., 79 Va....
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