State v. Lee

• Decision Date: 29 September 1894
• Citation: 91 Iowa 499,60 N.W. 119
• Parties: STATE v. LEE.
• Court: Iowa Supreme Court

91 Iowa 499

60 N.W. 119

STATE

v.LEE.

Supreme Court of Iowa.

Sept. 29, 1894.

Appeal from district court, Dubuque county; J. L. Husted, Judge.

The defendant was tried for the crime of murder in the first degree, was found guilty of murder in the second degree, and was adjudged to be imprisoned in the penitentiary at Anamosa at hard labor for the term of 20 years. From that judgment he appeals.Alphons Matthews, for appellant.

John Y. Stone, Atty. Gen., M. C. Matthews, Co. Atty., and Thos. A. Cheshire, for the State.

ROBINSON, J.

The indictment charges that on the 23d day of November, 1891, the defendant and Bernard Hansen committed the crime of murder in the first degree in Dubuque county by feloniously taking the life of one Leonard Lochner. It appears that Lochner was the driver of a street car in the city of Dubuque. At about 8 o'clock in the evening of the day specified, his car was in the northern part of the city, moving southward, and he was on the front platform. The defendant suddenly stepped onto the platform from the left side, and, presenting two revolvers, demanded Lochner's money. At the same time Hansen ascended the platform from the right side, holding a revolver in his hand. Lochner threw up one of his hands, and pushed away a revolver held by the defendant. At about that time one of them was discharged without effect, and a moment later a ball from Hansen's revolver struck Lochner, and inflicted the wound which caused his death.

1. The defendant and Hansen were jointly indicted for the crime charged, and Hansen was first tried, and was convicted. The defendant pleaded in writing that he was not guilty; that Hansen was the principal in the shooting, and had been tried and convicted of the crime of murder in the second degree; and that the defendant could not be placed on trial for a crime of a degree higher than manslaughter; and that he objected to being so tried. The objection was disregarded, and he was tried for the crime of murder in the first degree. The indictment charges in formal terms that both the defendant and Hansen, while in the perpetration of a felony, made a premeditated and malicious assault upon Lochner, with the specific intent to take his life. It also charges that the wound which caused his death was inflicted with the intent to kill him, by Hansen, and that the defendant was present aiding and abetting. We are of the opinion that the indictment charges the defendant as a principal, and not merely as an accessory; and this is true, not because the statute of this state has abolished the distinction between an accessory before the fact and a principal, but for the reason that the facts charged show that he was present, and actively engaged in the assault with intent to commit murder, and that he aided Hansen to fire the shot which took the life of Lochner. See 1 Whart. Cr. Law, § 220. It is said that the indictment shows that the defendant could not have been guilty of an offense of a higher degree than that committed by Hansen; that he was acquitted of the crime of murder in the first degree; and that his acquittal necessarily operated as an acquittal of the defendant of that offense; therefore, that it was error to put him on trial for it. Authorities are cited by appellant to sustain this claim; but an examination shows that most, if not all, of them, merely announce the common–law rule that an accessory before the fact cannot be convicted unless the principal has been convicted previously, or is tried and convicted with the accessory, and that in such case the acquittal of the principal operates to acquit the accessory. See McCarty v. State, 44 Ind. 214;Bowen v. State, 25 Fla. 645, 6 South. 459. That rule has no application under a statute which makes the crime of the accessory substantive and independent. 1 Whart. Cr. Law, § 237. Section 4314 of the Code is as follows: “The distinction between an accessory before the fact and a principal is abrogated, and all persons concerned in the commission of a public offense, whether they directly commit the act constituting the offense, or aid and abet its commission, though not present, must hereafter be indicted, tried and punished as principals.” Hence, had the indictment shown that the defendant was charged with acts which would have made him an accessory at common law, he would have been indicted and tried as a principal, without regard to the conviction of one who, at common law, would have been a principal. The facts charged show that the defendant was not merely a common–law accessory before the fact, but that he was present, armed with deadly weapons, and participated in the assault with the intent to commit murder, and that he aided and abetted in the firing of the shot which caused the death of Lochner. The guilt of defendant did not necessarily depend upon the guilt of Hansen, and the acquittal of the latter of the crime of murder in the first degree did not operate to acquit the defendant of that offense. We are of the opinion that he was rightly placed on trial for it.

2. A juror of the regular panel, while being examined as to his qualifications to act as juror in this case, stated that he had conscientious scruples against the infliction of the death penalty, and that he could not conscientiously agree to a verdict which should fix that...