State v. Wheelock , 218 Iowa 178 ( 1934 )

I find myself unable to agree with the majority's opinion, and therefore respectfully dissent.

In the majority's opinion in the first division, they say: "In the further course of the selection of the jury, one of the members of the panel who took part in the demonstration, was retained on the trial jury, over objection on the part of the defendant." The majority did not see fit to set forth the nature of this demonstration. No doubt there might be demonstrations which would not affect the qualifications of the prospective juror. But it is hard for me to see how any one can say that the demonstration which took place in this case did not definitely and positively show that the prospective juror had an opinion that would disqualify said juror from acting in this case. The record shows that one of the jurors, R.C. Park, on being examined to ascertain whether or not he was qualified to sit as a juror, was asked the following question:

"Q. Now, I will ask you this question. The defendant is on trial for driving a car while intoxicated, and, as you look upon him here this afternoon, do you look upon him as guilty or innocent? A. Well, I would say the evidence, he was guilty."

Upon the making of this answer there occurred a loud clapping and cheering in the courtroom. Even the trial court characterized this as an outbreak.

After the prospective juror who had made this statement was excused, one Esther Figg was called for examination as to her qualifications to sit as a juror. She was asked the following questions:

"Q. Were you in the court room yesterday afternoon? A. Yes, sir.

"Q. Were you sitting near any of those people that carried on this demonstration? A. What do you mean?

"Q. Yesterday afternoon, the hand-clapping? A. Well, I was sitting there among the crowd.

"Q. You didn't take any part in it, did you? A. I did, clapped my hands, yes.

"Q. What? A. Yes, I did clap my hands."

The defendant immediately challenged for cause the said Esther Figg upon the grounds disclosed by her examination. The state resisted the challenge and the court overruled the challenge, and the appellant later used one of his peremptory challenges to exclude her from the jury. Later the appellant was forced to accept as one of the jurors to sit upon his trial another person who had applauded the answer given by Park that he believed the defendant was guilty, appellant's peremptory challenges having been exhausted. It is hard for me to see how one can say that a defendant, charged with a crime, can have a fair and impartial trial if, before the case commences and before having listened to any of the evidence, prospective jurors, sitting in the courtroom, applaud openly a statement that the defendant is guilty. It seems to me conclusive evidence that when this woman applauded the statement of the prospective juror that the defendant was guilty, she had at that time a fixed opinion — not only a fixed opinion, but she was so biased and so prejudiced that she permitted herself to applaud the statement as to the guilt of the appellant before she had even heard any of the evidence in the case.

In the case of State v. Reed, reported in 201 Iowa 1352, at page 1354, 208 N.W. 308, this court said:

"Appellant herein exhausted all of his peremptory challenges. Under such circumstances, appellant is not required to show that he suffered prejudice by reason of having his challenge for cause overruled and a disqualified juror left upon his jury. Such prejudice will and should be presumed. The state has not shown that the error was without prejudice. Any other rule would leave a defendant in a position where he might face an entire panel of disqualified jurors with his proper challenges for cause overruled, and be compelled to exhaust his peremptory challenges upon those who should have been excused for cause and thereby be left with no peremptory challenges at all. The statute does not permit a defendant to be placed in any such situation. He is entitled, as a matter of law, to his challenges for cause against disqualified jurors, and to still have available to himself his peremptory challenges."

In the case of State v. Reed, above quoted, this court reversed that decision because of the fact that the defendant "is entitled, as a matter of law, to his challenges for cause against disqualified jurors, and to still have available to himself his peremptory challenges."

And so in the case at bar, no clearer showing could have been made, in my judgment, that a prospective juror had a fixed opinion, that the prospective juror was biased and prejudiced against the defendant, than was made when it was shown that Esther Figg openly applauded a statement that the appellant was guilty. It was the duty of the lower court to have sustained the challenge for cause, and the failure to do so was error. It makes no difference with what crime a defendant is charged, and it is immaterial who that defendant is; he is entitled to a fair and impartial trial. No trial can be fair and impartial if the jurors, who are selected to try it, demonstrate their feelings against the defendant before the case commences. It hardly seems to comport with our ideas of justice that a defendant should not be allowed to exclude for cause a prospective juror, who has applauded a statement of another prospective juror before he had heard the evidence, that "the defendant is guilty." In all criminal cases, and especially in cases such as this, which the record indicates has aroused considerable public interest and not a little adverse feeling towards the appellant, I believe the trial court should make particular effort to adhere to suggestions contained in State v. Teale, 154 Iowa 677, 135 N.W. 408, and cited with approval in several cases, wherein we said, at page 682:

"We are constrained to say in this connection, however, that we see no occasion in the ordinary administration of the criminal law in this state for the close rulings on the qualifications of jurors that are constantly brought to our attention. Although a ruling may be technically right, if it must be so doubtful as to raise a fair question as to its correctness, it is far better to give the accused the benefit of the doubt, to the end that he and all other men may be satisfied that his rights have not been invaded. Confidence in the fairness and impartiality of each member of a jury, which shall be sworn to try a man on a charge involving his life or liberty, is of the greatest importance to the welfare of the state. Indeed, it is of such paramount importance to every citizen that the time and expense necessary to secure jurors as to whom no doubt may rightly exist is an insignificant consideration."

The appellant also complains that in the cross-examination of certain witnesses the special prosecutor by his cross-examination deliberately injected prejudicial questions which unfairly reflected upon the character and credibility of the witnesses for the appellant. In the examination of the witness Willis O'Brien, the special prosecutor asked whether, when he and others, who were with him, first heard of the collision involved in this case, the remark was not made, "The damned fool has got just what we have been expecting." The question was objected to and the objection sustained by the court. In the examination of the appellant's witness L.W. Ellis, the special prosecutor asked the following question: "Now, let's see, for the purpose of identification, are you the same L.W. Ellis who was arrested for the illegal possession of intoxicating liquor at the State Fair a year ago last summer?"

Of course, both of these questions should not have been asked. They were improper and were so held by the trial court, and they could have been asked for no other purpose than to attempt to prejudice the jury against the appellant.

The record shows that the appellant on direct examination had not been asked in regard to drinking or possessing intoxicating liquor. Near the close of the cross-examination the record shows as follows:

"Q. Mr. Wheelock, did you drink any intoxicating liquor that morning before you started on that trip? A. Yes, sir.

"Judge Guthrie: Wait a minute. I want to make an objection before that is answered and I want the objection to go in ahead of the answer.

"The Court: The record may so show.

"Judge Guthrie: Objected to as incompetent, improper, immaterial, irrelevant and not proper cross-examination.

"The Court: This is for the purpose of testing his credibility only. That is what it will be allowed for now. Overruled. (Defendant excepts.)

"A. I say I did.

"Redirect examination. "I drank one drink about 1 o'clock. "Recross examination. "Q. Where did you have that drink?

"Judge Guthrie: Objected to as incompetent and not proper cross-examination.

"The Court: This evidence is admitted for the purpose of testing the witness' credibility and nothing else. You may answer. (Defendant excepts.)

"A. At Roger Finkbine's house. I didn't drink any liquor at my own home before I left.

"Q. Did you have any liquor in your own home?

"Judge Guthrie: Objected to as not proper cross-examination.

"The Court. Overruled for the same reasons as the last preceding objection. (Defendant excepts.)

"Judge Wilson: Not inquired into on direct examination.

"The Court: Overruled for the purpose of testing the credibility of the witness. (Defendant excepts.)

"Q. Did you have any intoxicating liquor at your own home at all that morning, in the home? A. In the home?

"Judge Guthrie: Objected to as immaterial, incompetent and not cross-examination.

"The Court: Overruled. (Defendant excepts.)

"A. I am not sure. I think there was some.

"Q. What was it?

"Judge Guthrie: Objected to for the same reason.

"The Court: Overruled. (Defendant excepts.)

"A. What was it?

"Q. Yes. A. Some wine. I don't know if I had any whiskey there. I did not drink any there at any time that morning.

"Q. How much whiskey did you have there at your home?

"Judge Guthrie: Objected to as incompetent and the witness has already testified that he didn't know that he had any and not proper examination.

"The Court: Overruled. (Defendant excepts.)

"A. I don't know that I had any.

"Q. You don't say that you did or did not? A. I do not.

"Q. Do you recall there being any bottles of whiskey up there in your dining room there?

"Judge Guthrie: The same objection.

"The Court: Overruled. (Defendant excepts.)

"A. I do not.

"Q. Or do you recall there being any liquor of any kind in the cellarette in the dining room? A. Cellarette, I haven't any.

"Q. Cellarette or cabinet? A. I have no cellarette or cabinet there.

"Q. How much of this wine did you have there?

"Judge Guthrie: The same objection, incompetent, irrelevant and immaterial and not cross-examination.

"The Court: Overruled. (Defendant excepts.)

"A. One gallon of Jewish wine that had never been opened.

"Q. Did you have any other liquor that you recall in home besides the whiskey and wine?

"Judge Guthrie: Objected to as not proper cross-examination.

"The Court: Overruled. (Defendant excepts.)

"A. Not to my knowledge."

Code section 13892, provides that:

"When the defendant testifies in his own behalf, he shall be subject to cross-examination as an ordinary witness, but the state shall be strictly confined therein to the matters testified to in the examination in chief."

In construing this section this court has held that, when a defendant in a criminal case testifies in his own behalf, he stands upon the same footing as any other witness for cross-examination with relation to his memory, motives, history, or matters affecting his credibility; and that the extent to which such inquiries may be carried necessarily rests largely in the sound discretion of the trial court.

In the case of State v. Burris, 194 Iowa 628, 636, 190 N.W. 38, 41, we said:

"Section 5485 is not meaningless, and it should be respected and enforced by trial courts in accordance with its manifest purpose. When the cross-examination of a defendant is not strictly confined to the matters testified to in the examination in chief, it must be limited, even under our previous holdings, to such matters as properly inhere in a cross-examination as affecting the credibility of the witness. But it is not within the province of a prosecutor, under the pretense of affecting the credibility of the witness, to propound interrogatories without any pretense or attempt to establish the truthfulness of the matters suggested by such inquiry and solely to cast insinuations upon the defendant. To open the doors to the cross-examination of a defendant by a proceeding of this character would leave him subject to insinuation and suggestion of gross misconduct, without any semblance of basis to support the same and with limitations fixed only by the extent of the imagination of the interrogator and his audacity in propounding the inquiries."

Even though it may be said that the question asked on cross-examination as to his drinking on the day of the occurrence in question proper as to testing his credibility, it seems to me a severe stretch of the rule, allowing cross-examination to test credibility, to permit the state to proceed to inquire into what, if any, liquor he may have had in his home; to insinuate that there was liquor in a cellarette or cabinet in his dining room; and, after he had stated that he had no whisky in his home, no cellarette or cabinet in which intoxicating liquor was kept, and that the only liquor in his house was one gallon of Jewish wine, which had not been opened; then to continue to question him as to what other liquor besides the whisky and wine were in his home. While it is conceivable that the appellant might have had liquor in his home which was legitimate and in compliance with the law, we think it is quite apparent that the questions in regard to his having liquor in his home were intended to refer to and were understood by the jury as referring to intoxicating liquors kept for beverage purposes. The appellant was, therefore, not only required to answer questions as to matters which had not been gone into on his direct examination, but he was required to answer questions which involved a violation of the criminal laws of the state of Iowa and of the United States. Certainly, no one can say that the test of the credibility of the appellant as a witness justified the extent to which the cross-examination was allowed to be carried. The sole purpose of the cross-examination, as I see it, was to create a feeling of prejudice against the defendant, and not for the purpose of testing his credibility. This of course was error. This was denying to the defendant a fair and impartial trial.

In the direct examination of one of the witnesses for the appellant, he was asked whether he knew the general reputation for general moral character of the appellant in the community in which he resided prior to June 21, 1931, and in answer thereto he stated that he did and that such reputation was good. On cross-examination, after the witness had been asked whether he had heard rumors and reports previous to June 21, 1931, that the appellant on occasions was drunk and intoxicated to excess, and had answered that he had not heard such rumors, and after he had been asked whether he knew of his own personal knowledge of the appellant being intoxicated, and had answered that he did not, the special prosecutor was allowed to proceed with the cross-examination as follows:

"Q. Have you heard that within two years prior to that time while in an intoxicated condition he had run into a car belonging to Harry Russell on Grand Avenue, and damaged that car, had fled from the scene of the accident and had been brought back to face the consequences?

"Judge Wilson: Just a minute. Object to this as incompetent.

"The Court: Overruled. (Defendant excepts.)

"A. No, sir, I never heard of an accident of that kind.

"Q. Have you ever heard that within the two years preceding that time and while in an intoxicated condition he has collided with a car in which Angeline Replinger was riding, a maid in the Gardner Cowles home?

"Judge Wilson: Same objection.

"The Court: Overruled. (Defendant excepts.)

"A. No, sir."

The record shows that practically the same course of cross-examination was pursued with reference to several other witnesses who had testified on direct examination that they knew appellant's general reputation for general moral character and that it was good. It will be noted that in the direct examination of each of these witnesses they were asked as to appellant's general reputation for general moral character. This question, therefore, called for general reputation and not for their knowledge of character itself. On cross-examination the state was allowed not only to question the witnesses as to such general reputation, but such witnesses were questioned about specific instances of alleged misconduct and drunkenness upon the part of the appellant. General reputation for moral character being the matter of inquiry, it would have been permissible for the state to inquire of these witnesses as to whether they had heard rumors or reports current in the community as to the specific transactions inquired about. State v. Kimes, 152 Iowa 240, 132 N.W. 180. The question put to appellant's witnesses, however, did not refer to rumors or reports current in the community, but referred to and implied the actual happening of the specific transactions referred to in the questions.

In State v. Van Hoozer, 192 Iowa 818, 822, 185 N.W. 588, 589, the trial court had permitted the state, in cross-examining defendant's character witnesses, to question them about other specific acts of misconduct of the defendant, and in reversing a judgment of conviction, we said:

"It is for the good of society, for the welfare of the state, that crime shall be punished, and that the prosecution of criminals shall be vigilant and vigorous. But, under our laws, the person charged with crime has certain well-known rights which the state is bound to respect. Time and again we have declared that proof of other crimes than the one with which a defendant is charged is not admissible against him. The state cannot do, by the indirect method resorted to in the instant case, that which it would not be permitted to do directly."

In State v. Burris, 194 Iowa 628, 190 N.W. 38, the state, over objection of the defendant, was allowed to ask character witnesses of the defendant whether or not they had heard of certain specific acts of misconduct on the part of the defendant, and in referring to the action of the trial court in that regard, this court said, at page 638:

"We have recognized the rule that upon the cross-examination of character witnesses they may be interrogated in regard to rumors and reports in the neighborhood reflecting upon the particular character of the party about whom they have testified. State v. Rowell, 172 Iowa 208, 154 N.W. 488; State v. Kimes, 152 Iowa 240, 249, 132 N.W. 180. But the cross-examination of the witnesses in the instant case did by no means conform to the rules recognized in our cases. The result could not be otherwise than to greatly prejudice the appellant by the insinuations and suggestions contained in these interrogatories. The examination should not have been permitted in this way, and it was prejudicial error not to sustain the objections interposed to this cross-examination."

Certainly, in the case at bar, the insinuations and suggestions contained in the interrogatories were greatly prejudicial to the appellant, and in view of the cases just cited, which state the rule of law well established in this state, the objections of the appellant to the questions asked by the attorney for the state, involving specific acts of misconduct on the part of the appellant, should have been sustained, and the failure to sustain them, is reversible error.

In view of the errors pointed out, I would reverse and remand the case.

I am authorized to say that Justices EVANS, DONEGAN, and KINTZINGER concur in this dissent.