State v. Peirce

• Decision Date: 17 November 1916
• Docket Number: 30921
• Citation: 159 N.W. 1050,178 Iowa 417
• Parties: STATE OF IOWA, Appellee, v. GEORGE PEIRCE, Appellant
• Court: Iowa Supreme Court

159 N.W. 1050

178 Iowa 417

STATE OF IOWA, Appellee, v. GEORGE PEIRCE, Appellant

No. 30921

Supreme Court of Iowa, Des Moines

November 17, 1916

[Copyrighted Material Omitted]

Appeal from Woodbury District Court.--JOHN W. ANDERSON, Judge.

FROM a conviction upon an indictment charging him with conspiracy to do illegal acts injurious to the public morals, police and to the administration of public justice, the defendant appeals.--Reversed and Remanded.

Reversed and Remanded.

Henderson & Fribourg and Paul M. Hatfield, for appellant.

George Cosson, Attorney General; John Fletcher, Assistant Attorney General, and O. T. Naglestad, County Attorney, for appellee.

SALINGER J. EVANS, C. J., LADD and GAYNOR, JJ., concur.

OPINION

SALINGER, J.

I.

There being good reason to believe that the jury would disagree, they were given an additional instruction, which is now complained of, and which, in substance, charged as follows:

That it should be the aim of the jury to reach a verdict if it could conscientiously do so; that the object of submitting causes was agreement, and not disagreement; that while, of course, the verdict should be that of each juror freely assented to, each should listen with respect to the arguments of his fellows; that being strongly in the minority should incline one to re-examine the ground of his opinion; that mere pride of opinion and a spirit of controversy had no place in the jury box; that retrials were burdensome and expensive; that some jury must decide the case, and there was no reason to believe another would be better qualified than the present jury, or that it would have more or clearer evidence.

Now while, among the cases cited, State v. Pitts, 11 Iowa 343, 346, merely determines the abstract proposition that it is not error to give an additional instruction, State v. McGhuey, 153 Iowa 308, 133 N.W. 678, decides no more than that the court may properly tell the jury that it should not be deterred from reaching a verdict by considerations of the severity of possible punishment; one holding of State v. Richardson, 137 Iowa 591, at 596, 115 N.W. 220, is merely that it is no abuse of discretion to give an additional instruction after a jury has failed to agree, upon 17 hours of deliberation; while perhaps Delmonica v. Smith, 112 Iowa 659, 84 N.W. 906, is not a controlling authority, because the exact conditions and facts do not appear in the opinion, and the record does not indicate what happened after the additional instruction was given; and while the circumstances were so different in State v. Olds, 106 Iowa 110, 76 N.W. 644, as to make that case of little value on the present controversy, Niles v. Sprague, 13 Iowa 198, Frandsen v. Chicago, R. I. & P. R. Co., 36 Iowa 372, German Sav. Bank v. Citizens' Nat. Bank, 101 Iowa 530, at 547, 70 N.W. 769, State v. Tripp, 113 Iowa 698, 84 N.W. 546, Burton v. Neill, 140 Iowa 141, 118 N.W. 302, Jackson v. State, 91 Wis. 253 (64 N.W. 838), Warlick v. Plonk, 103 N.C. 81 (9 S.E. 190), Ahearn v. Mann, 60 N.H. 472, have, taken together, approved every part of this instruction; and State v. Richardson, 137 Iowa 591, 115 N.W. 220, and Armstrong v. James, 155 Iowa 562, 136 N.W. 686, in effect, approve it in its entirety. On the other hand, in Clemens v. Chicago, R. I. & P. R. Co., 163 Iowa 499, 144 N.W. 354, we reverse because of an instruction substantially like it. The dissent of Mr. Justice Weaver in the Armstrong case, supra, presents a most formidable argument against the giving of the instruction in that case; and in cases where we sustain the verdict, we have inclined to view such an instruction with disapproval. State v. Mulhollen, 173 Iowa 242, 248, 155 N.W. 252, and State v. See, 177 Iowa 316, 158 N.W. 667. But, on careful analysis of all these cases, there is no decision that such an instruction should never be given, and no more is held than that it depends upon the conditions under which its language is used, whether there is reversible error. We must, then, turn to the conditions existing when such an instruction as this was respectively approved or disapproved. compare them with those surrounding the giving of the one here complained of, and deduce therefrom, if we can, some general rule whereby it may be determined when it is either proper or improper to charge as was done here. We must keep in mind that the trial court is vested with a reasonable discretion in the premises, and that the instruction at bar is free from at least one fault which has condemned such, namely, an intimation which party was favored by the court; for here the jury was told expressly that it was not intimated to them in the slightest degree what the verdict should be.

We have intimated strongly that such instructions are erroneous if their language (1) indicates an intention to coerce into agreement, or (2) suggests that the jury would be kept together until it agreed. German Sav. Bank v. Citizens' Nat. Bank, 101 Iowa 530, at 547, 70 N.W. 769; State v. McGhuey, 153 Iowa 308, 133 N.W. 678. The ultimate test would seem to be whether the additional instruction forced or helped to force an agreement, or whether it merely started a new train of real deliberation which ended the disagreement. In the Armstrong case, mach stress is laid upon the fact that the jury requested additional instructions, after the first, alleged to have been coercive, had been given, of which it is said that it indicates that the merits of the case were being considered, and the jury "had got to the very vitals thereof. . . . The instruction complained of did not of itself hasten the verdict. It did not come until the additional instruction was given." It is further pointed out that the jury was reluctant to be discharged, and asked for further time.

We say in Richardson's case that the length of time spent in deliberation after the giving of the instruction "clearly indicates that they were not misled by the instruction." It is very suggestive that, in the main, in the cases wherein the instruction was approved, the jury deliberated a shorter time before the additional instruction was given, and reached a verdict more slowly after the instruction was given, than in the Clemens case, where the instruction was disapproved, and in the present case. The argument in the Clemens case that, where the jury remains out long after being additionally charged, physical exhaustion may be a factor in agreement, is sound, but it does not change that there is more reason to doubt the quality of the verdict when the disagreement is of great length, and agreement after the additional instruction is given comes in a comparatively short time, than where substantially opposite conditions appear. All of which makes it a relevant inquiry what difference the cases present as to the time spent in deliberation before, and the duration of the deliberations after, such an instruction was given.

In Burton v. Neill, 140 Iowa 141, at 142, 118 N.W. 302, the jury had been out about 5 hours when the additional instruction was given; in Armstrong v. James, 155 Iowa 562, 136 N.W. 686, some 15 hours; in State v. Richardson, 137 Iowa 591, at 594, 17, 115 N.W. 220 hours; in German Sav. Bank v. Citizens' Nat. Bank, 101 Iowa 530, at 547, 22, 70 N.W. 769 hours; in Delmonica v. Smith, 112 Iowa 659, 84 N.W. 906, more than 36 hours; in Frandsen v. Chicago, R. I. & P. R. Co., 36 Iowa 372, at 378, 48 hours; and in Clemens v. Chicago, R. I. & P. R. Co., 163 Iowa 499, at 506, 144 N.W. 354, where the giving of the instruction caused a reversal, some 50 hours.

In the instant case, the additional instruction was given after the jury had been kept together some 13 days, and had been deliberating upon its verdict some 48 hours. It stood 3 for acquittal and 9 for conviction when the additional instruction was given, and returned a verdict of guilty in something less than 4 hours thereafter. In the Armstrong case, supra, 4 hours or more was needed to reach verdict; in Burton v. Neill, 140 Iowa 141, at 142, 118 N.W. 302, the verdict was reached some 12 hours after the additional charge; in Richardson's case, supra, 14 hours elapsed; in the Clemens case, supra, 20 hours. It seems to resolve into whether the relative time spent in deliberation may raise a presumption of prejudice against the instruction.

In the Armstrong case, while sustaining the instruction, we do so because of absence of other grounds for reversal. In State v. See, 177 Iowa 316, 158 N.W. 667, it does not appear how long the jury had disagreed, except that it was for "a considerable time;" and we sustain the instruction, though disapproving it, because "there is nothing appearing in this case to warrant a reversal because of the giving of this instruction." In State v. Mulhollen, 173 Iowa 242, 248, 155 N.W. 252, nothing is shown as to the duration of disagreement, except that the deliberations had lasted "several hours." The instruction, though disapproved, does not effectuate a reversal, because we find that the conditions give stronger warrant for approving the instruction than existed in the Richardson case, and we say:

"The evidence is so overwhelming and conclusive, as well as undisputed, that it is inconceivable that any candid juror could in good faith find any reasonable doubt of the guilt of the defendants. For that reason, if for no other, we think that the instruction could not have been prejudicial."

The dissent in Armstrong's case declares that the majority has marshaled all the extreme cases which "approached dangerously near the exclusive province of the jury," and that even those rest on the fact that, "under the peculiar circumstances of individual cases, no prejudice to the appealing party could be presumed."

The Clemens case emphasizes that the...