State v. Smith

• Decision Date: 16 October 1906
• Citation: 109 N.W. 115,132 Iowa 645
• Parties: STATE OF IOWA, Appellee, v. THOMAS SMITH, Appellant
• Court: Iowa Supreme Court

109 N.W. 115

132 Iowa 645

STATE OF IOWA, Appellee, v. THOMAS SMITH, Appellant

Supreme Court of Iowa, Des Moines

October 16, 1906

REHEARING DENIED, TUESDAY, JANUARY 8, 1907.

Appeal from Monroe District Court.--HON. FRANK W. EICHELBERGER Judge.

THE defendant was convicted of manslaughter, and from the judgment entered he appeals.

Affirmed.

Mitchell Tomlinson & Price, for appellant.

C. W. Mullan, Attorney General, and Lawrence De Graff, Assistant Attorney General, for the State.

OPINION

BISHOP, J.

This is the second appeal in this case. For the opinion on former submission, see 127 Iowa 534.

I. The indictment charged the defendant with the crime of murder in the first degree; and under our statute (Code, section 5407) he might be found guilty of any offense necessarily included in that charge. Manslaughter is, of course, included in a charge of murder. On the former trial of the defendant, he was found guilty of manslaughter, and upon his appeal to this court the judgment was reversed, and the case remanded for a new trial. By force of an elementary principle of criminal law, the verdict returned on such trial operated as an acquittal of the higher offense charged, so that he could thereafter be convicted, if at all, only of the offense of manslaughter. State v. Tweedy, 11 Iowa 350; State v. Clemons, 51 Iowa 274, 1 N.W. 546. Upon the case being remanded and again called for trial, the defendant demanded the right of ten peremptory challenges. This was refused, and he was restricted to six challenges. It is contended that herein was error. Our statute (Code, section 5365) provides that, "if the offense charged in the indictment is or may be punishable with death or imprisonment for life, the State and defendant are each entitled to 10 peremptory challenges; if any other felony, to 6 each," etc. The right of peremptory challenge is not a constitutional right. It exists only by virtue of the statute. Thus in State v. Shreves, 81 Iowa 615, 47 N.W. 899, it appeared that the alleged crime of murder was committed, and the prosecution commenced, at a time when, under the existing statute, a defendant so charged had the right of twenty peremptory challenges. Before the trial the statute was so changed that the right was limited to ten challenges. The demand of the defendant for twenty challenges was refused, and this court held there was no error. And it was said that the change in the statute affected no vested right. It pertained merely to the remedy.

Now, it is true that the offense named in the indictment returned against the present defendant, and under which he was put to trial, was murder. But the charge of the indictment was not limited to murder. In contemplation of law there was also charged every offense necessarily included in the charge of murder. And this must be so, as otherwise there could be no warrant for receiving a verdict and pronouncing judgment as for an offense inferior to murder. Now, as we have seen, the verdict on the former trial operated to acquit the defendant of every offense included in the indictment above the offense of manslaughter. In effect there had been eliminated from the indictment the offense of murder in its several degrees, and there remained only, as the offense for which the defendant could be put on trial, manslaughter and the offenses inferior thereto. Looking at the statute directly drawn in question with these principles in mind, we think it must be said that by the expression "the offense charged in the indictment" was meant no more than the offense included in the indictment for the commission of which only the defendant could be put to trial, and for which he was about to be tried. The question thus presented seems to be one of novel impression. At least but one case, People v. Comstock, 55 Mich. 405 (21 N.W. 384), thought to have direct bearing has been brought to our attention. Counsel for defendant seem to think that case an authority for their contention. But upon reading we think otherwise. There the defendant was charged by information with an assault with intent to commit murder. On trial he was convicted as charged, and on appeal he secured a reversal. The case having been brought on for retrial, he demanded the right to exercise peremptory challenges to the number of thirty as allowed by statute under an information charging an assault with intent. Thereupon the prosecutor announced that in his opinion the evidence would not warrant a conviction of any offense above a simple assault, and that he expected to ask only for a conviction of that grade of offense. The trial court took the view that under such circumstances the defendant was entitled to only the same number of challenges he would be entitled to if the action was an original one for a simple assault, and accordingly he was limited to five challenges. The defendant was convicted of a simple assault, and he again appealed. In its opinion declaring for a reversal the appellate court puts its judgment upon the ground, probably dictated by local statutory provisions, that, "if respondent was not to be tried for the offense charged in the information, he could not in that suit be tried for any other offense." And further it is said: "It does not lie within the province of the prosecutor or court to abridge the rights of the respondent by trying him for a crime of which he is not accused, and in this case for an offense not within the jurisdiction of the court to try at all." From this it will be apparent that the court had no occasion to, and did not attempt to, deal with the question as made in the record before us. We conclude that there was no error in the ruling complained of.

II. Appellant complains of misconduct on the part of the county attorney, in that in making his opening statement to the jury, and in violation of the provisions of Code, section 5423, he made direct reference to the verdict returned against defendant on the former trial. Conceding that this was error taken by itself, we do not think appellant is in a position to complain thereof. The attention of the county attorney was at once called to his transgression, and thereupon "he withdrew the statement and asked the pardon of the court and jury." He also asked that the jury be instructed to give no consideration to the statement as made by him. By an amendment to the abstract the State has brought up the bill of exceptions signed and made of record by the court below at the request of defendant, and therefrom it appears that, following the improper statement by the county attorney, the attorneys for defendant moved for a discharge of the jury, but that before a ruling and after consultation they announced to the court "that they had concluded to go ahead with the trial." And in the bill this is injected by the court: "That but for the statement made...