State v. Wilson, No. 46341.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtGARFIELD
Citation17 N.W.2d 138,235 Iowa 538
PartiesSTATE v. WILSON.
Decision Date09 January 1945
Docket NumberNo. 46341.

235 Iowa 538
17 N.W.2d 138

STATE
v.
WILSON.

No. 46341.

Supreme Court of Iowa.

Jan. 9, 1945.


Appeal from District Court, Poweshiek County; J. G. Patterson, Judge.

Defendant, indicted and tried for murder, was convicted of manslaughter and appeals.

Reversed.

Superseding former opinion, 13 N.W.2d 705.

[17 N.W.2d 139]

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.


GARFIELD, Justice.

This opinion is substituted for an earlier one reported in 13 N.W.2d 705, which was withdrawn and a rehearing granted on September 23, 1944.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

[17 N.W.2d 140]

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

[17 N.W.2d 141]

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...

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16 practice notes
  • State v. Jacoby, No. 59756
    • United States
    • United States State Supreme Court of Iowa
    • December 21, 1977
    ...if these character traits were unknown to the accused. State v. Wilson, supra, 236 Iowa at 442-443, 19 N.W.2d at 238-239; State v. Wilson, 235 Iowa 538, 544, 17 N.W.2d 138, 142 (1945); State v. Beird, 118 Iowa 474, 478, 92 N.W. 694, 696 (1902); Wigmore, supra. This principle is similar to t......
  • Von Patzoll v. United States, No. 3442-3445.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • October 27, 1947
    ...and Shaw, 168 Eng.Rep.R. 283; Brown v. State, 28 Ga. 199, 217; Skipper v. State, 150 Fla. 259, 7 So.2d 128, 129, 130; State v. Wilson, 235 Iowa 538, 17 N.W.2d 138, 140; Id., Iowa, 19 N.W.2d 232, 239; Christie v. Commonwealth, 193 Ky. 799, 237 S.W. 660, 661, 24 A.L.R. 599; Smith v. Commonwea......
  • State v. Peel, No. 397
    • United States
    • Florida District Court of Appeals
    • April 29, 1959
    ...tried and on April 2, 1943, was found guilty of manslaughter and on his appeal the judgment was reversed. See State v. Clarence Wilson, 235 Iowa 538, 17 N.W.2d The appellant, Albert Wilson, in State v. Wilson, supra, asked for reversal because of two errors of the court, the first being the......
  • Cocklin v. Watkins (In re Cocklin's Estate), No. 46550.
    • United States
    • United States State Supreme Court of Iowa
    • March 9, 1945
    ...established probate law-property interests have been settled and cases determined upon its authority. Useless and unwarranted litigation [17 N.W.2d 138]has been prevented by the fact that wills have contained this type of provision. Of course a rule not well founded should not be followed m......
  • Request a trial to view additional results
16 cases
  • State v. Jacoby, No. 59756
    • United States
    • United States State Supreme Court of Iowa
    • December 21, 1977
    ...if these character traits were unknown to the accused. State v. Wilson, supra, 236 Iowa at 442-443, 19 N.W.2d at 238-239; State v. Wilson, 235 Iowa 538, 544, 17 N.W.2d 138, 142 (1945); State v. Beird, 118 Iowa 474, 478, 92 N.W. 694, 696 (1902); Wigmore, supra. This principle is similar to t......
  • Von Patzoll v. United States, No. 3442-3445.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • October 27, 1947
    ...and Shaw, 168 Eng.Rep.R. 283; Brown v. State, 28 Ga. 199, 217; Skipper v. State, 150 Fla. 259, 7 So.2d 128, 129, 130; State v. Wilson, 235 Iowa 538, 17 N.W.2d 138, 140; Id., Iowa, 19 N.W.2d 232, 239; Christie v. Commonwealth, 193 Ky. 799, 237 S.W. 660, 661, 24 A.L.R. 599; Smith v. Commonwea......
  • State v. Peel, No. 397
    • United States
    • Florida District Court of Appeals
    • April 29, 1959
    ...tried and on April 2, 1943, was found guilty of manslaughter and on his appeal the judgment was reversed. See State v. Clarence Wilson, 235 Iowa 538, 17 N.W.2d The appellant, Albert Wilson, in State v. Wilson, supra, asked for reversal because of two errors of the court, the first being the......
  • Cocklin v. Watkins (In re Cocklin's Estate), No. 46550.
    • United States
    • United States State Supreme Court of Iowa
    • March 9, 1945
    ...established probate law-property interests have been settled and cases determined upon its authority. Useless and unwarranted litigation [17 N.W.2d 138]has been prevented by the fact that wills have contained this type of provision. Of course a rule not well founded should not be followed m......
  • Request a trial to view additional results

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