State v. John

• Decision Date: 12 May 1904
• Citation: 124 Iowa 230,100 N.W. 193
• Parties: STATE v. JOHN.
• Court: Iowa Supreme Court

124 Iowa 230

100 N.W. 193

STATE

v.JOHN.

Supreme Court of Iowa.

May 12, 1904.

The defendant appeals from a judgment convicting him of the crime of perjury. On rehearing. Reversed. Opinion in 93 N. W. 61, set aside.

LADD, J.

The indictment is criticised as being defective, in that the precise date of the offense is not stated. No doubt, there is some confusion in the decisions with respect to the degree of definiteness required in charging perjury. But section 5285 of the Code provides that “the precise time at which the offense was committed need not be stated in the indictment, but it is sufficient, if it allege that it was committed at any time prior to the time of finding thereof, except where time is a material ingredient of the offense.” Section 5289 declares that “the indictment is sufficient if it can be understood therefrom * * * that the offense was committed prior to the time of the finding of the indictment.” The only fair inference from these statutes is that the allegation need be no more specific than the proof. An allegation that the act was committed on or about a named date was upheld in State v. Perry, 117 Iowa, 462, 91 N. W. 765. In State v. Freeman, 8 Iowa, 428, 74 Am. Dec. 317, the indictment alleged the date as May 12, 1858, and in the videlicit as October 12th of the same year, and the court said: “The time of the commission of the offense was immaterial, and need not be proved as laid. Being alleged under a videlicit, it was nugatory and not traversable, and, if repugnant to the premises, did not vitiate the indictment, but the videlicit itself may be rejected as surplusage. It would be otherwise if the precise time were the very point and gist of the cause. In such case the time alleged by the videlicit is conclusive and traversable, and shall be intended to be the true time, and no other; and, if impossible or repugnant to the premises, it will vitiate the indictment.” Starkie's Crim. Pleading, 277, 278. In State v. Brooks, 85 Iowa, 366, 52 N. W. 240, an impossible date was rejected as surplusage. The indictment in the instant case charges that “Zenas W. John on the 7th day of April, 1900, in the county aforesaid, and at a regular term of the district court of Iowa in and for Muscatine county, held in said county, and on or about March 1, 1900, there was tried to and before the Hon. P. B. Wolfe, a judge of the Seventh Judicial District of Iowa, and a jury, a certain cause and action, wherein the state of Iowa was plaintiff and Zenas W. John was the defendant, charged with murder, and upon the trial of issues joined in said cause between the state of Iowa, plaintiff, and said Zenas W. John, defendant, it became and was material to the issues and proceedings in said cause had, whether or not said Zenas W. John was present on October 1st, 1899, at the lunchroom of Paxton Wright, in West Liberty, Iowa, at a time when a fight occurred between one Ross Wiley and Walter W. Boot, at said place, whether or not the said John fired a shot in said lunchroom on that evening, and whether or not the said John pointed and discharged his revolver at said Boot during or after the occurrence of said fight on that evening.” Then follow the assignments of perjury with respect to these material matters. Certainly this charges the offense to have been committed before the indictment was found by the grand jury, and must be held sufficient, regardless of any possible ambiguity as to date, unless section 5289 of the Code, quoted above, is to be ignored, Doubtless that statute was enacted to obviate the rule requiring a definite date asserted as in the many decisions cited by appellant. However, the first date named, “on the 7th day of April, 1900,” appears to have no connection with the other language of the instrument.Nothing is alleged to have been done by John at that time, nor is the court at which he was on trial said then to have been in session. This date may be rejected as surplusage, and leave the indictment as definite in time as that approved in State v. Perry, supra.

2. The cause was set down for trial April 25, 1901. A panel of jurors had been serving during the term, and, on the day before the trial began, the court ordered the names of 25 persons, in addition to the regular panel, to be drawn from the petit jury box and summoned for the trial of this case. This was authorized by section 347 of the Code, which provides “that the court or judge thereof, either before or during the term, may order as many additional jurors drawn for the term, or for the trial of any particular case as may be deemed necessary.” When this is done, the jurors summoned become a part of the panel for the term or the particular case, as the order directs, and not until it is exhausted should talesmen be called as directed in section 349 of the Code. Manifestly this authority is conferred to the end of more certainly securing a fair and unbiased jury, and by its exercise the use of talesmen may be entirely avoided. Whether additional jurors shall be summoned from the body of the county, or drawn from the talesmen box, is a matter for the court, in the exercise of sound discretion, to determine in each particular case.

3. The perjury charged was alleged to have been committed on the trial of John for murder, in that he falsely testified that he was not present at the lunchroom of one Wright, in West Liberty, October 1, 1899, at the time of a fight between Ross Wiley and Walter W. Boot at said time and place, and did not point and discharge his revolver at said Boot after or during said fight. In the selection of a jury, the defendant exercised all the peremptory challenges to which he was entitled, and complains of the action of the court in overruling several challenges for cause. Hubert Patten, in response to inquiries on voir dire, answered that he had been acquainted with Boot in his lifetime, and had boarded with him some weeks several years previous; had known his parents and family, and had talked with his kinfolks in regard to the circumstances attending his death; had read the reports of the trial, including the printed reports of the testimony of all the witnesses in the case; that he had formed and expressed an opinion as to “whether Mr. John did or did not do the shooting which killed Walter Boot”; that he had that opinion still, and it would take strong evidence to remove it. To a question he answered: “It will take pretty strong evidence to remove my opinion. I think, if the evidence was such as would indicate or show conclusively or reasonably that the defendant was not guilty, I could lay aside that prejudice and go according to the evidence. By the Court: Q. Now, Mr. Patten, this opinion you say you have--is that an opinion as to the guilt or innocence of the defendant? A. Yes, sir. Q. In the murder case or perjury case? A. In the murder case. I know nothing about this case at all. (Challenge overruled. Defendant excepts.)” Cross-examination: “Q. You answered me that you had an opinion as to whether the defendant did or did not fire the shot that killed Walter Boot? A. Yes, sir. Q. You have that opinion? A. Yes, sir. Q. You have an opinion either that he did or did not do the deed? A. Yes, sir. Q. But you have no opinion as to whether he did or did not tell the truth when he gave his version of it? A. No. (Defendant challenges the juror Hubert Patten for the reason that his answers disclose he has a fixed and unqualified...