State v. Wilson

• Decision Date: 22 November 1913
• Citation: 144 N.W. 47,166 Iowa 309
• Parties: STATE OF IOWA v. PIERCE WILSON, Appellant
• Court: Iowa Supreme Court

144 N.W. 47

166 Iowa 309

STATE OF IOWA v. PIERCE WILSON, Appellant

Supreme Court of Iowa, Des Moines

November 22, 1913

Appeal from Mahaska District Court.--HON. B. W. PRESTON, Judge.

THE defendant was indicted for murder in the first degree and convicted of murder in the second degree. He appeals.

Affirmed.

Dan Davis and McCoy & McCoy, for appellant.

George Cosson, Attorney General; John Fletcher, Assistant Attorney General, and James A. Devitt, for the State.

LADD C. J. WEAVER, C. J., and EVANS and GAYNOR, JJ., concur. PRESTON, J., took no part.

OPINION

LADD, J.

I.

The indictment charged that defendant, "upon the body of Josephine Wilson, then and there being willfully, feloniously, deliberately, premeditatedly and of his malice aforethought, did commit an assault with a deadly weapon, being a revolver, then and there held in the hands of the said Peter Wilson and loaded and charged with powder and bullets, and then and there the said Peter Wilson did, with the specific intent to kill and murder the said Josephine Wilson, willfully, feloniously, deliberately, premeditatedly and of his malice aforethought shoot off and discharge the contents of said deadly weapon at, against and into the body of said Josephine Wilson, thereby willfully, feloniously, deliberately, premeditatedly and of his malice aforethought, inflicting in and upon the body of said Josephine Wilson mortal wounds, of which mortal wounds the said Josephine Wilson did then and there die." The particular criticism is that the assault was not alleged to have been with specific intent to kill, and, if the first part of the language quoted were to be considered alone, this might be true. That, however, described the situation of the parties generally, and, following it, the act constituting the crime is clearly defined. It is the act of taking the life of another which must have been done with specific intent to kill in order to constitute murder in the first degree. The act includes the assault, and the act of shooting off and discharging the revolver into the body of deceased is clearly defined in this indictment as having been committed with specific intent to kill. State v. Watkins, 27 Iowa 415; State v. McCormick, 27 Iowa 402; State v. Dyer, 147 Iowa 217, 124 N.W. 629. See Leonard v. Territory of Washington, 2 Wash. Terr. 381 (7 P. 872); State v. Phillips, 118 Iowa 660, 92 N.W. 876.

II. The crime is alleged to have been committed September 25, 1912, and the indictment was returned October 24th, following. On the 14th of December, the defendant challenged the panel of petit jurors on the grounds: (1) That in three townships the judges of election did not certify to the return of petit jurors as required by law, and (2) that the election judges did not return the number of electors to serve as jurors as apportioned by the county auditor. In order to understand the questions raised, it will be necessary to briefly refer to the statutes. Section 335 as amended by chapter 20 of the 33d General Assembly directs that the "list from which to select persons to serve as petit jurors for the two years commencing the first day of January next following shall be a number equal to one-tenth of the inhabitants of the county as shown by the last preceding official census." At the time of distributing the poll-books to the judges of election, the auditor is required to furnish them also a statement of the number of persons apportioned to their respective precincts to be returned for the petit jury list, and the judges are required to make the requisite selection and return lists of names so selected to the auditor with the returns of elections. "Such lists shall be composed only of persons competent and qualified to serve as jurors," and persons who have served as jurors since January 1st, preceding, are to be omitted, as are also the names of judges and clerks of election. "The members of the election board . . . when certifying to such lists shall state that the lists do not contain the name of any person who requests, directly or indirectly, that his name appear thereon and that it does not contain the name of anyone who served as judge or clerk of the general election of the year in which the list is prepared." Should the judge of election "fail to make and return such list as herein required, the board of supervisors shall, at a meeting held to canvass the votes polled in the county, make such lists for the delinquent precincts and the auditor shall file such lists in his office and cause a copy thereof to be recorded in the election book." Section 337-a, Code Supplement 1907, as amended by chapter 21 of Acts of 33d General Assembly.

The auditor and the clerk prepare the ballots containing the names of all persons so returned, and from these the jurors are drawn. Section 338, 342, Code. The lists from which the jury was drawn were prepared at the general election of 1910. The auditor certified that the lists should consist of the names of 3,026 persons from which to draw jurors. In many of the precincts fewer names were returned than apportioned, so that 2,328 names only were certified by the election judges. In three of the precincts, the election judges qualified by taking the oath prescribed by statute to perform their duties, and they and the clerks of election signed their names below the words, "A true return," following the computation of the votes cast for the several candidates. On each of the pollbooks, following the names of the petit jurors, appear the words: "We hereby certify that the list of names herein returned by us for jurors are correct, and that the said persons are competent and qualified to serve as jurors in accordance with section 337, Code of 1897, as we verily believe, and we further certify that said lists do not contain the names of any persons who requested directly or indirectly, that his name appear thereon or the name of any person who certified as a judge or clerk of this election." Below this was the word "attest," signed by a clerk, and the spaces left for the names of the judges of election, but no signatures. They did not forget, however, to certify to the compensation to which each was entitled. It will be noted that the only requirement for certification is that quoted, and the questions for our determination are whether the omission to return the number of names apportioned by the county auditor, or the failure to sign the certificate quoted in the three townships, was a material departure from the forms prescribed by law, for section 3679 of the Code provides that a challenge to the panel "can be founded only on a material departure from the forms prescribed by statute in respect to the drawing and return of the jury."

It will be observed that that statute assumes, rather than requires, that the jury lists will be certified by the election judges, and so they should be in the orderly discharge of duty by these officers. But the requirement is not specified in mandatory language, and there is no reason for thinking that the Legislature intended, in defining the mode of selecting and returning jury lists, that the rule construing such statutes as directory should be modified. Though decisions may be found to the contrary, this court is committed to the doctrine that, in the absence of any showing of prejudice, substantial compliance with the statutes relating to the selection and returning of jury lists is all that is required.

In State v. Brandt, 41 Iowa 593, but seventy-three names of persons to serve on the grand jury were returned whereas the list should have contained seventy-five names, one township making no return, and two names were added by two of the supervisors neither of whom were drawn, and this was held not to justify setting the indictment aside, following State v. Carney, 20 Iowa 82. In State v. Ansaleme, 15 Iowa 44, jury lists were not certified and in two townships there was nothing to show which list was intended for grand jury and which for petit jury (the last in order being used for petit jury), and the court held the statutory provisions directory and approved of the action of the trial court in overruling the motion to set aside the indictment. In State v. Pierce, 90 Iowa 506, 58 N.W. 891, the apportionment among the precincts was not entirely accurate, owing to changes in boundaries, and this was held not to be fatal to the indictment. This was on the ground that the statutes relating to the selection and return of jury lists are directory, and also that the court, being required to "examine the record, and, without regard to technical errors or defects which do not affect the substantial rights of the parties, render such judgment on the record as the law demands," found the defects therein not to affect the substantial rights of defendant. This was also a ground of the ruling in State v. Brandt, supra. As noted in State v. Hassan, 149 Iowa 518, 128 N.W. 960, the defendant has no vested right in any particular jury list. "Substantial compliance with the law with reference to appointing, selecting, and drawing grand jurors is all that is required." State v. Edgerton, 100 Iowa 63, 69 N.W. 280. True, all these decisions relate to the selecting and return of grand jury lists, but those for petit jurors are prepared and returned by the same officers, in the same manner, and are prescribed in the same statutes, differing only in respect to the number of names, and the mode of selecting and returning must also be regarded as directory. "An abundance of authorities establish the proposition that a strict compliance with the statutory provisions as to the time and mode of making the selection is not necessary. Such provisions are in general purely directory." Thompson & Merriam on Juries, ...