State v. Baldy

Cole, J. 1. Indictement: name of offense. Tbe indictment does'’not contain tbe name of tbe offense, but does contain a statement of tbe facts constituting tbe offense-of adultery, in ordinary aQd concise language, and further avers that it wag foun(j on complaint of Asenatb Baldy, tbe lawful wife of tbe defendant.''''; — 40 — The defendant demurred to tbe indictment, because it did not name tbe offense, that it was uncertain as to tbe crime charged, did not show tK'at tbe wife was alive when tbe offense was committed, and did not, also, accuse tbe other party to tbe crime. This demurrer was overruled, and tbe decision of tbe court thereon is assigned as tbe first error. While as a matter of form it may be the better practice to name tbe offense in tbe indictment, a failure to do so will not render it vulnerable to a demurrer or other objection. A fair construction of tbe Revision, §§ 4650, 4651, 4659, subdivision 5, § 4660, subdivision 4, and § 5111 shows beyond controversy that such objection certainly cannot be made available on appeal. (The State v. Hessenkamp, ante, 25.) All tbe other grounds of demurrer have no foundation in fact, in this case, except the last, and that is entirely immaterial. 2. Change of venue discretion. TT. Tbe defendant applied for a change of venue, on tbe ground of excitement and prejudice against him in that county, and supported bis application by bis own affidavit and that of three other persons. It was resisted by tbe counter affidavits of eighteen persons, and was overruled by tbe court, and tbe same is now assigned as error. By express statute tbe granting or refusing an application for change of venue, is a matter of sound legal discretion with tbe District Court, and unless that discretion is exercised clearly in violation of tbe very right of tbe matter, this court will not disturb tbe decision. (The State v. Nash and Redout, 7 Iowa, 347; The State v. Mooney, 10 Iowa, 506; The State v. Arnold, 12 Iowa, 479; The State v. Ingalls, ante, 8.) III. It is next assigned as error, that tbe court erred in refusing tbe seven instructions asked by defendant. Without taking tbe time which would be necessary to review each instruction and show wherein it was stated with — 41 — equal correctness and force for defendant in the instructions given by the court, or as is the case with one or two of them, without any evidence upon which to base them, wé remark, that after carefully comparing them with those given by -the court, and with the evidence, we find them either without foundation in the-. Evidence or very perspicuously embraced in the instructions given by the court to the jury, and therefore it was not error to refuse them. 3. New trial: misconduct of jury. IV- After the jury had.retired in charge of the bailiff, two of them, each separately at different times, were permitted to'separate from the balance of the jury, and during:-tfreii;; absence from the jury room, which was for a nécessáíy;purpose, one of such -jurors went to a grocery store to purchase some tobacco, and while there procured and' draijik:a'glass of ale or lager bier, and then returned with the bailiff in whose charge he had been while absent, to thé-j-ftry.room. The affidavits are conflicting as to whether'tKé:j'uror conversed with other persons at the grocery, or not, but there is no conflict that he was absent from his felló'w‘jurats and drank spirituous drink while absent. ■ There are one or more affidavits. ,tka£ the juror advised other persons of the state of deliberation, and how the jury stood, and that the bailiff also -did the same, but this is not free from doubt. - iNf ' At the common law the jury were kept together without meat, drink, fire, or candle,- -unless -by permission of the judge, till they agreed. 3 Bl. Com., 375. This rule has been so far modified in this country that the jury may of course, and without any special'pbifiliSsion of the judge, have water, fire, and lights, but the permission of the judge is requisite for meat or board.. ■But at no time has it ever been' ‘cláim/éd that even with the permission of the judge, could the jury have spirituous liquors, or that which at one tiffipwilS regarded as an — 42 — almost national if not necessary drink, cider; now, so happily, in view of its stimulating an appetite for still stronger and spirituous liquors, gone into comparative disuse. It has been held by tbe courts in tbis country, that the use of spirituous liquors by a juror, even with the consent of the parties, will vitiate the verdict. In Brant v. Fowler, 7 Cow., 562, after the judge had concluded his charge, several of the jurors wishing to go out were told by the judge they could go, accompanied by an officer. One of them being indisposed from diarrhoea, separated himself from the officer and drank about one-third of a gill of brandy to check his disease, but it was shown that the juror finding the others in due season for deliberation, conducted himself with great propriety, was chosen foreman, and delivered the verdict. The whole court say: “We cannot allow jurors thus of their own head to drink spirituous liquor while engaged in the course of a cause. We are satisfied that here has been no mischief; but the rule is absolute and does not meddle with consequences, nor should exceptions be multiplied. We have set aside verdicts on error for this cause, even where the parties consented that the jury should drink. The People v. Douglass, (4th Cow., 26), though a criminal case is in point, for the principle of this motion, which must be granted.” We should hesitate long before declaring in any case where a juror indulges in the use of intoxicating liquors, without medical prescription and leave of court, during retirement, that “ we are satisfied no mischief has resulted,” but fully indorse the balance of what is said by the court. Section 5111 of the Revision, provides in substance that no judgment shall be reversed except for error or irregularity which has resulted to the actual prejudice of the party complaining, and it may be claimed that no such preju — 43 — dice is shown in this case, as resulting from the drinking by the juror. : ... The parties have a clear right to. the cool, dispassionate . and unbiased judgment of each, juror applied to the determination of the issues in the cause, and the use in • any degree of that which stimulates' the passions and has a tendency to lessen the soundness of, judgment, is itself conclusive evidence that the party who has the right to the -exercise of that dispassionate judgment, has been prejudiced in not having it as perfect as i’t existed in the juror „ when accepted, applied to the determination of the cause. If this is true as a general rule;'.and &s applicable to civil cases, a fortiori is the rule applicable in criminal cases, and especially in this case in which thp. offense charged involves obedience to passions stimulated, moré than others by the use of spirituous liquors, and of course in its correct determination requiring the most careful guarding against undue influence from them. . . ' Y. It is also claimed that the...Verdict is against the weight of evidence; since the judgment must be reversed for the reason last stated, it becomes unnecessary to pass upon this point. •. •" 4. Adultery: prosecution for. YI. Asenath Baldy, the wife of the defendant, appeared before the grand jury at.the’time the indictment was found, and was the first witness examined by them, and she testified to certain facts-tending to show the guilt of the defendant. : ' ' But she was not examined and did not appear as a witness on the trial of the defendant iruthe'Ttistrict Court. It is now assigned as error, that the court proceeded with the trial of the cause, when the wife did .not appear to prosecute it. It is provided by § 4347 óf.lthé- Bevision, that “ no prosecution for adultery can be commenced, but on the complaint of the husband or wife; ->This statute does not require that the husband or wife shall continue to — 44 — prosecute to conviction, but it is sufficient if tbe prosecution is commenced on their complaint. After it is thus commenced, it may be continued without further co-operation on their part. As it appears that this prosecution was commenced on the complaint of the wife, it was not error to continue the prosecution to final determination, even without her presence or consent. For the misconduct of the juror as stated, the judgment is reversed, and cause remanded for a new trial. Reversed.