State v. Wilson
| Citation | 17 N.W.2d 138,235 Iowa 538 |
| Decision Date | 09 January 1945 |
| Docket Number | 46341. |
| Parties | STATE v. WILSON. |
| Court | United States State Supreme Court of Iowa |
Frank R. Talbott, of Brooklyn, and H. S. Life and McCoy & McCoy, all of Oskaloosa, for appellant.
John M. Rankin, Atty. Gen., Wm. F. McFarlin, Asst. Atty. Gen., and L. R. Carson, Co. Atty., and William M. Spencer, Sp. Asst Atty., both of Oskaloosa, for appellee.
This opinion is substituted for an earlier one reported in 13 N.W.2d 705 which was withdrawn and a rehearing granted on September 23 1944.
This defendant (Clarence Wilson) and his two brothers Glenn and Albert were jointly indicted as principals for the murder of Harry Bolden. A separate trial was granted to each. It is the state's theory that Glenn killed Bolden by striking him with a club while Clarence and Albert were present aiding and abetting by holding Bolden. The killing followed a drinking party in which an argument arose that in turn led to the fight. The Glenn Wilson case is reported in 11 N.W.2d 737, where the evidence upon the trial of Glenn is fully set out.
I. Error is claimed in the overruling of defendant's motion to set aside the indictment based on the exclusion of women from the list of names from which the grand jury was chosen. The clear trend of the decisions is that so long as no names are placed upon the lists that could not properly be included and no class of persons is excluded to the defendant's prejudice, there is no ground for questioning the indictment. State v. Sangster, 196 Iowa 495, 496, 497, 192 N.W. 155, and cases cited; 38 C.J.S., Grand Juries, p. 1003, § 12. Further, the inclination is to hold that only those persons may object to the exclusion of members of a race or class from the grand jury who are members of the race or class which has been excluded. Thus a man may not complain of the unlawful exclusion of women from the grand jury. 24 Am.Jur. 852, 853, section 28; Annotation, 82 L.Ed. 1053, 1064; Petition of Salen, 231 Wis. 489, 286 N.W. 5. See also 38 C.J.S., Grand Juries, p. 1003, § 12. We conclude this defendant was not prejudiced by the exclusion of women from the list from which the grand jury was drawn and this assignment of error is without merit.
II. Over defendant's objections, four peace officers testified to oral declarations and a written statement made by Glenn Wilson, not in Clarence's presence, the day after the killing. The written statement contains a recital of the events leading up to the fatal blow and an admission that Glenn struck Bolden on the head with a stick. The state in an attempt to justify the admission of this evidence invokes a rule which prevailed at common law that upon the trial of an accessory guilt of the principal could be proven by any evidence which was admissible against the latter. The contention cannot be sustained. The admission of this evidence was prejudicial error. The common law rule is not applicable here, even without considering section 12895, Code 1939, which provides that the distinction between an accessory before the fact and a principal is abrogated, and all persons concerned in the commission of an offense must be indicted, tried and punished as principals.
At common law, the principal in the first degree was the actual perpetrator of the crime. A principal in the second degree was one who was present, actually or constructively, aiding and abetting the act. 1 Wharton Crim.Law, 12th Ed. 325, 328, sections 240, 245; 40 C.J.S. Homicide, p. 836, §§ 8, 9; 26 Am.Jur. 197, section 57; 33 Words and Phrases, Perm.Ed., p. 615. An accessory before the fact, at common law, was not actually or constructively present at the commission of the crime but procured, counseled or commanded another to commit it. 40 C.J.S. Homicide, p. 836, § 9; 1 Words and Phrases, Perm.Ed., pp. 246-248. At common law the confession of the principal was admissible on the trial of the accessory, to prove the commission of the crime by the principal provided some evidence of the defendant's cooperation was first furnished. 4 Wigmore on Evidence, 3d Ed., 133, section 1079(c); Mulligan v. People, 68 Colo. 17, 189 P. 5, 9.
The basis for this rule of evidence was that in order to convict the accessory at common law guilt of the principal must first be proven; guilt of the accessory depended on guilt of the principal; the acquittal of the principal entitled the accessory to his discharge. Indeed, at common law, an accessory could be tried with the principal or separately after the latter's conviction, but he could not, except with his consent, be tried before the principal. State v. Lee, 91 Iowa 499, 501, 60 N.W. 119; Gibson v. State, 53 Tex.Cr.R. 349, 110 S.W. 41; Rawlins v. State, 124 Ga. 31, 52 S.E. 1, 12; Ex parte Bowen, 25 Fla. 214, 6 So. 65; 1 Bishop Crim.Law, 9th Ed. 482, section 667; 1 Wharton Crim.Law, 12th Ed. 364, section 277.
But even at common law this defendant was not a mere accessory but a principal. State v. Berger, 121 Iowa 581, 585, 96 N.W. 1094; State v. Lee, 91 Iowa 499, 501, 502, 60 N.W. 119; 26 Am.Jur. 198, section 57; 1 Wharton Crim.Law, 12th Ed., 351, 352, section 263; 1 Bishop Crim.Law, 9th Ed., 487, section 675. According to the state's theory he was at common law a principal in the second degree. If he is guilty at all it is because he was present aiding and abetting the commission of the crime. Even at common law his guilt is not dependent on guilt of his brother Glenn. He might be convicted even though Glenn were acquitted. (It was conceded in argument that Glenn was acquitted upon the retrial of his case.) State v. Berger, supra; State v. Lee, supra; Christie v. Commonwealth, 193 Ky. 799, 237 S.W. 660, 24 A.L.R. 599 and Annotation at page 603; 14 Am.Jur. 831, section 93; 1 Wharton Crim.Law, 12th Ed. 347, section 260. Thus the reason for the rule of evidence upon which the state relies is not applicable here.
While there is some confusion in the matter because some courts have not kept in mind the distinction between principals in the first and second degree on the one hand, and principal and accessory on the other, the sound rule and we think the weight of authority is that a confession by one who was at common law a principal in the first degree is not admissible against one who was present aiding and abetting the commission of the crime (i. e., a principal in the second degree). State v. Beebe, 66 Wash. 463, 120 P. 122, 124, 125, and citations. McCabe v. State, 149 Ark. 585, 233 S.W. 771; 3 Bishop New Crim.Procedure, 2d Ed. 1230, sections 13(4), 14.
Our conclusion also finds support in decisions under statutes similar to our section 12895 that declarations of the principal after the commission of the offense, in the absence of one who was at common law an accessory before the fact, cannot be shown upon the trial of the latter and that the acquittal of the principal does not bar prosecution of the accessory. State v. Bogue, 52 Kan. 79, 34 P. 410, and citations; People v. Kief, 126 N.Y. 661, 27 N.E. 556; Ogden v. State, 12 Wis. 532, 78 Am.Dec. 754; 1 Wharton Crim.Law, 12th Ed. 366, section 277. See also State v. Lee, 91 Iowa 499, 501, 502, 60 N.W. 119; State v. Smith, 100 Iowa 1, 4, 69 N.W. 269, which cites with approval State v. Bogue and People v. Kief, supra.
Somewhat in point are the numerous cases holding that declarations of a coconspirator, not in the presence of the accused, after the termination of the conspiracy are inadmissible against the accused. State v. Huckins, 212 Iowa 283, 288, 234 N.W. 554, and citations; State v. Archibald, 204 Iowa 406, 409, 215 N.W. 258; State v. Crofford, 121 Iowa 395, 403, 96 N.W. 889, and citations; 20 Am.Jur. 427, section 493; 22 C.J.S., Criminal Law, p. 1316, § 770.
We think this case is governed by the rule of State v. Westfall, 49 Iowa 328, 333: See also State v. McGuire, 50 Iowa 153; State v. Smith, 54 Iowa 656, 7 N.W. 123; State v. Condit, 307 Mo. 393, 270 N.W. 286, 290; State v. Nist, 66 Wash. 55, 118 P. 920, 922, Ann.Cas.1913C, 409.
The right of this defendant under Code section 13842 to a separate trial presupposes the right to have his guilt or innocence determined upon evidence admissible as against him, free from the prejudicial effect of evidence tending to show only the guilt of his brother Glenn. Otherwise the right of separate trial is of little value. State v. Beebe, 66 Wash. 463, 120 P. 122, 124. See State v. Walker, 124 Iowa 414, 423, 100 N.W. 354.
State v. Brown, 130 Iowa 57, 61, 106 N.W. 379, and State v. Leeper, 199 Iowa 432, 438, 200 N.W. 732, cited by the state, are distinguishable. In each case the defendant was not present at the commission of the crime but was at common law an accessory before the fact and not, as here, a principal. It is not clear from the Brown opinion what declarations of the principal were held to be admissible. They may have been part of the res gestae. At least we do not think the opinion holds that declarations of the principal after the commission of the offense, not made in the presence of the accessory, are admissible against the latter. The Brown case seems not to have considered the effect of what is now section 12895. In the Leeper case there was evidence of a conspiracy and the acts and declarations of the principal, also a conspirator, held to be admissible were made during the existence and in furtherance of the conspiracy. The cases cited by the state from other jurisdictions also involve principal and accessory and not joint principals.
The state contends this evidence was not...
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