State v. Rhodes, 44129.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtSTIGER
Citation227 Iowa 332,288 N.W. 98
Docket NumberNo. 44129.,44129.
Decision Date26 October 1939

227 Iowa 332
288 N.W. 98


No. 44129.

Supreme Court of Iowa.

Oct. 26, 1939.

Appeal from District Court, Johnson County; James P. Gaffney, Judge.

Defendant was charged with murder in the first degree. The jury returned a verdict of guilty as charged, directing that the punishment be death. Defendant appeals.


Superseding opinion in 282 N.W. 540.

SAGER, RICHARDS, and MITCHELL, JJ., dissenting.

[288 N.W. 99]

Will J. Hayek, of Iowa City, for appellant.

Fred D. Everett, Atty. Gen., Harold W. Vestermark, Co. Atty., and F. F. Messer, Sp. Asst. Co. Atty., both of Iowa City, and Jens Grothe, Asst. Atty. Gen., for the State.

STIGER, Justice.

This case is before us on resubmission after granting a rehearing, our opinion appearing in State v. Rhodes, Iowa, 282 N.W. 540.

The information upon which appellant was tried charged that on February 9, 1937, in Johnson County, Iowa, he willfully, unlawfully, deliberately, premeditatedly, feloniously, designedly, with malice aforethought, and with the specific intent to kill, murdered Mrs. Mabel Rhodes, his wife, in the following manner: the said Walter H. Rhodes wilfully deposited in a shotgun dynamite or other explosive material and thereafter and then and there did induce Mrs. Mabel Rhodes, his wife, to use and explode the said gun, thereby killing the said Mrs. Mabel Rhodes, his wife.

[1][2] Appellant interposed a demurrer to the information, claiming in substance, that (1) the information was duplicitous and (2) that the information did not charge the appellant with first degree murder as defined by Code, Section 12911, but if any crime is charged in the information it is the crime defined by Code, Section 12961, which reads:

“12961. Death caused by high explosives. If any person wilfully deposits or throws in, under, or about any dwelling house, building, boat, vessel, or raft or other inhabited place, where its explosion will or is likely to destroy or injure the same, any dynamite, nitroglycerin, giant powder, or other material, and by reason of the explosion thereof any person is killed, he shall be guilty of murder.”

The trial court overruled the demurrer. Appellant's first assignment of error is based on the action of the court in overruling the demurrer. There is no merit in appellant's contention and the assignment does not warrant a discussion.

[3][4] The remaining assignments of error complain of the ruling of the trial court in overruling appellant's challenges to the jurors for cause. Appellant exhausted his peremptory challenges and strikes and was compelled to accept juror J. A. Zenishek.

Code, Section 13830, reads:

“13830. Challenges for cause. A challenge for cause may be made by the state or defendant, and must distinctly specify the facts constituting the causes thereof. It may be made for any of the following causes:


11. Having formed or expressed such an opinion as to the guilt or innocence of the prisoner as would prevent him from rendering a true verdict upon the evidence submitted on the trial.”

[288 N.W. 100]

The question to be determined on this appeal is whether the trial court erred in overruling appellant's challenge to juror Zenishek for cause; that is, had this juror formed or expressed such an opinion as to the guilt of the prisoner as would prevent him from rendering a true verdict upon the evidence submitted on the trial?

On direct examination, Mr. Zenishek stated that he did not know of any reason that would prevent him from sitting as a trial juror in the case and to serve as such fairly and impartially; that he would give the evidence introduced by both the state and defense thoughtful, careful and diligent consideration; that he would be guided by the instructions of the court; and that he would be willing to arrive at his verdict based solely on the evidence introduced in the trial of the case.

On cross examination, he testified that “if the crime charged in the information is that this defendant killed his wife” he would make the state prove, beyond a reasonable doubt, what act defendant did to kill his wife; that he would be a fair and impartial juror in the case. On further cross examination, he testified:

“Q. Have you read the accounts of this alleged crime in the various newspapers? A. Some.

Q. Have you ever heard it discussed or discussed it? A. Some.

Q. I suppose the facts alleged in the newspapers were set out therein as being the facts in this case weren't they? A. I don't know.

Q. So far as you know, I suppose? A. Yes.

Q. From reading the papers and from the discussion that you have heard and had, have you formed an opinion which has been fixed in your mind as to the guilt or innocence of this defendant? A. Well, some.

Q. In other words, you have fixed an opinion from reading the newspapers and from the discussion you have heard, as to the guilt or innocence of the defendant, haven't you? A. Yes, sir.

Q. And that opinion is such an opinion as would require some evidence to the contrary to remove it, wouldn't it? A. Yes, sir.

Q. And I suppose you would have to hear evidence from some witnesses different from what you have already heard before you would be willing to change this opinion, is that correct? A. Well, I suppose.

Q. In other words I suppose, Mr. Zenishek, if you entered the jury box with that opinion in your mind that you have already formed, that it would remain with you unless you heard some evidence to the contrary? A. Yes, sir.

Q. And that if no such evidence were introduced to change that opinion you would still have it during the trial? A. Yes, sir.

Q. And this opinion you have already formed would influence your verdict in this case if you sat as a juror? A. Well, it may.”

Appellant then challenged the juror for cause for the reason that the above examination showed that he had a fixed opinion as to the guilt or innocence of appellant. Mr. Zenishek again testified on redirect examination that he, under his oath as juror, would decide the case solely upon the evidence introduced and the instructions of the court.

He further testified:

“Q. Now this opinion you have, that you say you have, is one that is based solely upon what you have read in the newspapers? A. Yes, sir.

Q. So that you don't know whether or not this opinion-what you have read about, is true or not? A. No, sir.

Q. Do you understand, Mr. Zenishek, that there exists a presumption of innocence which exists in behalf of the defendant? A. Yes, sir.

Q. If you have taken this oath as a juror and you sit on the trial of this case, could you lay aside that opinion and try this case solely and entirely upon the evidence introduced in the trial of this case? A. Yes, sir.

Q. And you could do that? A. I think so.

Q. And would you do that? A. I think so.

Q. Would you lay aside that opinion? A. I think so.

By the court: Do you feel that this opinion which you may have formed, would in any manner interfere with your rendering a fair and impartial verdict if you are chosen as a juror? A. I don't think so.

Q. You don't think so? A. No.

The Court: The challenge for cause is overruled.”

[288 N.W. 101]

The juror was asked, “from reading the papers and from the discussion that you have heard and had, have you formed an opinion which has been fixed in your mind as to the guilt or innocence of this defendant?” He answered, “well, some.” Prior to this place in the examination, the juror had testified that there was no reason why he could not sit as a fair and impartial juror on the case and that he would rest his verdict solely on the evidence introduced and the instructions of the court. Nothing had been said about a “fixed” opinion. The question called for an affirmative answer and the answer given was “well, some.”

In the case of State v. Vatter, 71 Iowa 557, 32 N.W. 506, a prospective juror first stated that he did not have an opinion which would prevent him from rendering a true verdict. On cross examination, in answer to the question whether his opinion was unqualified, he stated that it was. The court then states in 71 Iowa on page 558, 32 N.W. on page 507:

“but all through their examination they appeared to adhere to the belief that they had no opinion which would prevent them from rendering a true verdict according to the evidence. It is a very rare thing that a person called as a juror, who has heard the facts connected with the case, and has formed some kind of an opinion in reference thereto, maintains entire consistency in his examination as to his qualifications as a juror. The difficulty arises from the fact that many of them do not understand the difference between a qualified and an unqualified opinion, and, the questions being put to them in a leading form, there is often an apparent contradiction in the answers given. We think, when the whole examination of the jurors in question is considered, the court did not err in overruling...

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