State v. Pickett

• Decision Date: 15 December 1897
• Citation: 73 N.W. 346,103 Iowa 714
• Parties: STATE OF IOWA v. C. S. PICKETT, Appellant
• Court: Iowa Supreme Court

73 N.W. 346

103 Iowa 714

STATE OF IOWA v. C. S. PICKETT, Appellant

Supreme Court of Iowa, Des Moines

December 15, 1897

Appeal from Jefferson District Court.--HON. F. W. EICHELBERGER Judge.

AT the February term, 1897, of said court, the defendant was indicted, tried, and convicted of the crime of adultery, and his motion for a new trial overruled, and judgment of imprisonment in the penitentiary for the period of nine months entered against him, from which he appeals.

Affirmed.

A. W Jaques for appellant.

Milton Remley, attorney general, and Jesse A. Miller for the state.

OPINION

GIVEN, J.

One ground of appellant's motion for a new trial is that one of the jurors who sat on the trial cannot read or write the English language, and that appellant did not know that fact until after the trial. It is shown that one of the jurors, a native of Sweden, who had resided in this country for nineteen years, and become a citizen thereof, and an elector of this state, could not read or write the English language. Such being the fact, appellant contends that the court erred in overruling his motion for a new trial. Section 1, chapter 61, Laws Twenty-sixth General Assembly, is as follows: "All qualified electors of the state, of good moral character, sound judgment and in full possession of the senses of hearing and seeing, and who can speak, write and read the English language, are competent jurors in their respective counties." See section 332 of the Code. Section 4405 of the Code of 1873 (section 5360, present Code) provides, among other grounds of challenge for cause: "A want of any of the qualifications prescribed by statute to render a person a competent juror." Sections 4407, 4408, Code 1873 (sections 5361, 5362, present Code), provide that the juror challenged, and other witnesses, may be examined to prove or disprove the challenge. It does not appear that any challenge was made to said juror, or that he, or any other witness, was examined as to his competency. Appellant contends that the fact of the juror's incompetency, and that appellant did not know that fact until after the trial was a sufficient ground for granting a new trial; and he cites and relies upon State v. Groome, 10 Iowa 308. In that case the defendant moved in arrest of judgment, and for a new trial, for the reason that one of the jurors who tried the case was not an elector of the state; and such was found to be the fact. The court says: "It is claimed by the state that the defendant cannot take advantage of this objection to the juror by a motion for new trial, that he passed his time by not challenging the juror before the trial, for cause. We think it is the duty of the state to place twelve legal jurors in the box, and that it is not the duty of the defendant to inquire whether the jurors are qualified or not. It is presumed that the officer whose duty it is to select the jurors will select those who are competent and legal. The law tenders to defendant a jury for the trial of his cause, and by accepting the jury he waives any objection thereto for bias or prejudice, of any character whatever, in the minds of any of the jurors; but, if either of the jurors was disqualified to act as such, the defendant does not waive his right to objection for this cause, but has a right to a new trial. If the defendant knew at the time the jury was sworn that any of them were not qualified to act as jurors, he would have waived his right to object thereto. It must appear that defendant had knowledge of this fact before it can be inferred that he waived his objection. Without this knowledge, a waiver cannot be inferred;" citing Cowles v. Buckman, 6 Iowa 161. In the cited case, only eleven jurors were called, and both parties, not observing or knowing that fact, accepted the jury. It was held that the parties were entitled to a full jury, that there was no waiver, and that appellant was entitled to a new trial. In Faville v. Shehan, 68 Iowa 241, 26 N.W. 131, this court held that when, in a civil action, in the absence of concealment or fraud on the part of his adversary, a party accepts a juror without examination as to his qualifications, he waives objections on account of want of qualifications discovered afterwards. It is said: "A different rule, applicable to criminal cases, was recognized in State v. Groome, supra. We are not disposed to extend the doctrine of that decision in civil cases;" citing a number of cases. In State v. Kaufman, 51 Iowa 578, 2 N.W. 275, one of the jurors, becoming ill, was, with consent of the defendant, discharged; and, with defendant's further consent, the trial was concluded before the eleven jurors. It was held that a defendant in a criminal case may waive a statute enacted for his benefit, and therefore could consent to a trial with eleven jurors. It will be observed that in these cases this court has recognized the right of an accused to waive objections to jurors on the ground of incompetency, or to the panel on the ground of number. In Groome's Case the defendant was held not to have waived the objection to the juror, because it did not appear that he had knowledge of the juror's incompetency until after the trial. The contention before us is not as to the right of an accused to waive an objection to an incompetent juror, but whether he should be held to have waived it by not challenging for that cause, and examining the juror, or other witnesses, to sustain the challenge. Counsel for the state concede that, if the doctrine announced in State v. Groome is to stand, this case must be reversed. They insist, however,--upon a very full citation and review of the authorities on both sides of the question,--that the rule in Groome's Case is so against reason and the current of decisions that it should be overruled. Their citations are so complete that we will not refer to other cases. The following cases do tend quite directly to support the conclusion in Groome's Case, namely: Guykowski v. People, 2 Ill. 476, 1 Scam. 476; Schumaker v. State, 5 Wis. 324; Hill v. People, 16 Mich. 351; Rice v. State, 16 Ind. 298; and State v. Babcock, 1 Conn. 401. These cases are modified, if not overruled, in the following later decisions by the same courts: Chase v. People, 40 Ill. 352; Davison v. People, 90 Ill. 221; State v. Vogel, 22 Wis. 471; People v. Scott, 56 Mich. 154, 22 N.W. 274; Croy v. State, 32 Ind. 384; Kingen v. State, 46 Ind. 132; Gillooley v. State, 58 Ind. 182, and State v. Tuller, 34 Conn. 280. The following cases fully sustain the claim that the rule generally observed is that a failure to challenge a juror for cause, as to his competency, and to examine him, or other witnesses, in support of the challenge, is a waiver of the right of challenge, though the fact of incompetency is not known to the party...