State v. Smith
| Decision Date | 09 June 1904 |
| Parties | THE STATE OF IOWA, Appellee, v. HARVEY SMITH, Appellant |
| Court | Iowa Supreme Court |
Appeal from Wapello District Court.--HON. ROBERT SLOAN, Judge.
THE defendant was convicted of the crime of seduction, and he appeals.
Affirmed.
Jaques & Jaques, for appellant.
C. W Mullan, Atty. Gen., and Lawrence De Graff, Asst. Atty. Gen for the State.
I. As the jury was being impaneled, Frank Creswell, a member of the regular panel, was called into the box. Upon his voir dire examination, he answered that he had on that morning talked with the defendant about his case; that defendant told him the facts as he claimed them to be, and that thereby some impression was made on his mind. He says he told defendant before the talk that he was a juror, and that he does not know who commenced the conversation. He further says that to some extent he had formed an opinion in regard to the case, but not from what defendant told him; that the talk with defendant would not influence his verdict, and that he had no opinion that would interfere with his sitting as a juror. A challenge was interposed by the State and sustained, the defendant saving an exception. The discretion of the trial court must govern very largely in the matter of the selection of a jury. We will not interfere unless there is made to appear a positive violation of law or a clear abuse of discretion. And it is for the court to determine whether the examination of a proposed juror discloses his fitness, and it is not precluded from rejecting him although he may in terms declare that he is free from opinion or prejudice, provided that the examination as a whole discloses his unfitness. In the instant case, there was no violation of any rule nor an abuse of discretion. On the contrary, the ruling of the trial court was such as to meet our unqualified approval. The juror was either wholly ignorant respecting the dignity and importance of the duty resting upon him as such, or he was wholly indifferent--using the mildest expression possible--to the requirements of such duty. If the former, he needed the lesson afforded by his rejection, to say the least; if the latter, he should have been sharply rebuked, and discharged from further service.
As to the defendant, he must have known that it was likely that Creswell would be called as a juror in his case, and that, in any event, it was grossly improper for him to make an antetrial presentation of his case to a juryman. And certainly we will not hear him to complain that he has not had a fair trial, because forsooth a juryman, upon whose mind he had previously made an impression by a private presentation of his defense, was not allowed to sit in judgment upon his case.
II. In argument, counsel for appellant insist that there should be a reversal of the judgment of the trial court because it appears from the record that the prosecuting witness, Nellie Curry, was allowed to give her testimony without being sworn as required by law. The record does not disclose in terms that any of the witnesses, either for the State or for defendant, were sworn before testifying. It appears that Nellie Curry, among others, was called as a witness for the State, and, in answers to questions on direct and cross-examination, she detailed the story of her alleged seduction. After she had left the witness stand she was recalled, and there was propounded to her by the court the following question: "Was the testimony heretofore given by you true and correct?" and this she answered in the affirmative. Being cross-examined by counsel for defendant, she said that she did not know, when giving her testimony, that she had not been sworn; that she was not present when the other witnesses were sworn; that Mr. Emery had asked her if she had been sworn, and she told him she had not. It is a plain requirement of law that witnesses shall affirm or be sworn before being allowed to testify. It is the duty of the court to see that this is done, and we will assume that the requirement was observed, unless the contrary is made to appear. Can it be said that the record before us makes it clear that there was a failure to comply with the legal requirement? We have recited above all there is in the record relating to the subject. There is, then, no direct showing to the effect that the oath was not administered. The question propounded by the court, and the answer thereto, cannot be accepted as showing failure, and, in our view, the cross-examination disclosed no more than that the witness had said to Emery, out of court, that she had not been sworn. She does not testify that she was not sworn, and there was no attempt to otherwise make the fact appear. The mere circumstance that one who had been a witness in a case is shown to have subsequently made the statement, out of court, that she had not been sworn before testifying, cannot be accepted as sufficient to overcome the presumption of correct proceeding in which we are required to indulge, and so authorize a reversal of the judgment entered. If the fact was as contended for by appellant, he should have made it appear in some tangible way. This he did not do, nor did he object to the presence of the testimony in the record, or move to strike it out, and thus require a reintroduction of the witness.
Moreover there is authority for saying that a verdict and judgment should not be set aside in any event on account of a mere irregularity occurring upon the trial, such as that a witness has inadvertently been allowed to testify without being sworn, it appearing that the fact was known to defendant at the time, or, at least, that his attention was called to it during the progress of the trial, and no objection having been made or exception taken by him. That a person charged with a crime is entitled to be confronted with the witnesses against him is very true, and it may be conceded that due process of law...
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