(Supreme Court of Iowa. Jan. 16, 1894.)

Murder - Indictment - Evidence - Confessions - Instructions - Pardon - Lying In Wait - Jurors - Peremptory Challenge - Death Penalty - Modification On Appeal.

1. The state may examine a person summoned as a juror on a trial for murder in the first degree, concerning prejudice against the death penalty, for the purpose of a peremptory challenge, though the jury are required to fix the punishment at either death or imprisonment for life, in a verdict of guilty, and such prejudice is not a ground for challenge for cause.

2. On trial for the murder of a young girl, whose body was found on a bed beside her murdered mother, the state could prove the condition of the mother's body and of her clothing, which tended to indicate an assault, in order to show defendant's connection with the crime, the circumstances of its commission, and the motives which prompted it.

3. The indictment charged that defendant "did, with the specific intent to kill the said N., [deceased,] willfully, feloniously, deliberately, premeditatedly, and of his malice aforethought, strike said N. on the head with said unknown weapon, and did discharge the contents of said pistol into the head of said N., thereby willfully, feloniously, deliberately, premeditatedly, and of his malice aforethought, inflicting a mortal wound, of which the said N. then and there did die." Held that the indictment sufficiently charged. that a pistol-shot wound in deceased's head, and a wound caused by a blow with some instrument, were both inflicted willfully, feloniously, deliberately, and with premeditation.

4. Reference by the court to the indictment, in charging that the state must prove specified facts beyond a reasonable doubt before defendant could be convicted of the crime charged in such indictment, was not objectionable, when the jury were told, in the language of the court, what the indictment charged, and were not told to examine it.

5. On trial for murder in the first degree, defendant is not entitled to have the jury charged as to the law of pardons applicable to persons convicted of such crime.

6. A. so-called "confession" by defendant to a newspaper reporter, which he prepared for publication, was read in evidence without objection, and many statements therein were shown to be false or inaccurate. Held, that the jury could accept statements that seemed to deserve credit, and from such statements, and the other evidence, find facts sufficient to warrant a conviction.

7. Evidence that the mother was killed in the house, while her daughter was at the barn, that defendant desired to effect a temporary concealment of the crime, and that the daughter was killed on her return to the house, would warrant a finding that the murder of the daughter was accomplished by "lying in wait."

8. Where the jury, on sufficient evidence, found defendant guilty of murder in the first degree, and fixed his punishment at death, the supreme court cannot chance the punishment to imprisonment for life because defendant was only 16 years old, was inferior in mental development to most boys of his age, and was of uniformly good conduct before the commission of the crime.

Appeal from district court, Adams county; H. M. Towner, Judge.

Defendant was charged by indictment with the crime of murder, was tried by jury, found guilty of murder in the first degree, and the punishment designated in the verdict was death. From the judgment rendered on the verdict, fixing the date of his execution on the 16th day of June, 1893, the defendant appeals.

Dale & Brown, for appellant John T. Stone, Arty. Gen., and Thos. A Cheshire, for the State.

ROBINSON, J. At about 7 o'clock in the morning of May 11, 1892, W. H. Coons went from his home, which was between half and three-quarters of a mile southwest of the town of Prescott, leaving there his wife, Lucinda; his daughter, Nellie, 10 years of age; and his nephew, the defendant, 16 years of age. At 5 o'clock in the afternoon of the next day, he returned, and found the house closed and locked. He succeeded in entering it, and found lying on a bed the lifeless bodies of his wife and daughter. They had been murdered, and appearances indicated that they had been dead for from 24 to 36 hours when their bodies were found. "The underclothing of the mother was in such disorder as to indicate that an assault before the murder may have been attempted. The nephew was absent, and had taken a team, buggy, and some clothing, and other articles, which he did not own. Late in the evening of the 12th day of May, he was arrested in Villisca. His indictment and conviction were for the murder of his cousin, Nellie Coons.

1. Section 2 of chapter 165 of the Acts of the 17th General Assembly, as amended by section 2 of chapter 2 of the Acts of the 18th General Assembly, contains the following: "Upon the trial of an indictment for murder the Jury, if they find the defendant guilty of murder in the first degree, must designate in their verdict whether he shall be punished by death or imprisonment for life at hard labor in the penitentiary. "During the impaneling of the trial Jury the state was permitted to ask certain persons, who were retained as members of the Jury, whether they had any conscientious scruples against the infliction of the death penalty. The defendant objected to the questions as "incompetent, immaterial, and irrelevant, and not a statutory ground for challenge." The objections were overruled, and of that ruling the appellant complains. The questions were not allowed on the theory that the answers might disclose ground for challenge for cause; and much that is said in argument, and most of the authorities cited by appellant on that point, are wholly irrelevant to the question presented. He does not deny that peremptory challenge may be made by the state and by the defendant without the assignment of any cause, but insists that the right to examine persons called to act as Jurors in regard to their qualifications is limited to the statutory grounds for challenges for cause. Section 4407 of the Code, relied upon by appellant to sustain his claims, is as follows: "4407. Upon the trial of a challenge to an individual juror, the Juror challenged may be examined as a witness, to prove or disprove the challenge, and must answer every question pertinent to the inquiry thereon, but his answers shall not afterwards be testimony against him." That section refers exclusively to challenges for cause, and has no relation to peremptory challenges. It is the general and well-established practice to allow both to the state and to the defendant considerable latitude in the examination of persons called to act as Jurors, not only to facilitate the discovery of grounds for challenge for cause, but to enable the parties interested to discover any peculiarity of conduct, association, character, or opinion, or any predilection, of the person under examination, or other circumstances which, in the opinion of the examiner, might influence the person as a Juror, and affect his verdict. It is well known to persons familiar with jury trials that jurors are frequently influenced in reaching a verdict by considerations which have no legitimate application in the case. The right of peremptory challenge gives the means of keeping from the Jury persons of that kind, which the challenge for cause does not afford; and parties should be permitted to examine persons called to act as Jurors, within reasonable limits, to the end that the peremptory challenges may be used intelligently. It was the privilege of the state to exclude from the Jury, so far as its right to peremptory challenges extended, all persons who were prejudiced against the infliction of the death penalty; and it was not an abuse of the right of examination to permit inquiry as to the views of the persons summoned as jurors, on that point. The objections to questions under consideration were therefore properly overruled.

2. Appellant complains that the state was permitted to prove, not only the condition in which the body of Nellie Coons was found, but also the condition of the body of her mother, and of the clothing upon it, on the ground that the effect of permitting such evidence to be introduced was to put him upon trial for an assault upon the mother, and the murder of both the mother and child. We do not think the complaint is well founded. The state was entitled to show the condition in which the body of the child was found, and its surroundings, and, incidentally, that of the mother, in order that the connection of the defendant with the crime of which he was accused, the circumstances under which it was committed, and the motives which prompted it, might be more fully understood; and the fact that, in proving those matters, another crime would necessarily be shown, did not affect the right of the state to introduce the evidence in question.

3. The evidence shows that there were two wounds on the head of Nellie Coons, one on the back of it, caused by a blow with some instrument, and a pistol-shot wound in the forehead, and that the latter probably caused her death. The appellant contends that the indictment does not sufficiently charge murder in the first degree, committed by the pistol shot, in that it does not allege that the shot was fired willfully, and with deliberation, premeditation, malice aforethought, and intent to kill. The indictment contains two counts. The first one charges that defendant, at the time and place stated, "in and upon the body of one Nellie Coons, then and there being, willfully and feloniously, deliberately, premeditatedly, and of his malice aforethought, did commit an assault with deadly weapons, being a deadly weapon, the particular description of which is to the grand jury unknown, and a pistol then and there held in the hands of the said James O. Dooley, and loaded with powder and bullet, and then and there the said James O. Dooley did, with the specific intent to kill and murder the said Nellie Coons, willfully, feloniously, deliberately, premeditatedly, and of his malice aforethought, strike and boat the said Nellie Coons, upon her, the said Nellie Coons', head and body, with the said unknown weapon, and did shoot off and discharge the contents of the said pistol at, against, into, and through the head and body of the said Nellie Coons, thereby, willfully, feloniously, deliberately, premeditatedly, and of his malice aforethought, inflicting upon the head and body of the said Nellie Coons a mortal wound, of which said mortal wound the said Nellie Coons then and there did die." The second count charges the offense in the same language, with the addition that it was committed "by lying in wait." We think the indictment not only sufficiently, but very clearly, charges that both wounds were inflicted willfully, feloniously, deliberately, and with premeditation. No other interpretation can be given to all the language used in either count, when considered together.

4. The appellant claims that the court, in its charge, erroneously referred the jury to the indictment for information in regard to the offense charged. In some paragraphs of the charge the court referred to the indictment, as by stating that before the defendant could be convicted of the crime charged in the indictment the state must prove specified facts beyond a reasonable doubt, but the jury were not told to examine the indictment. On the contrary, they were told, in the language of the court, what it charged. The charge is not vulnerable to the objections made.

5. The appellant complains that the court refused to instruct the jury in regard to the law of pardons applicable to persons convicted of murder in the first degree. We think the action of the court in that respect was correct. The guilt of the defendant did not depend upon the means provided by law for escaping punishment, nor do we think that was a matter to be considered by the Jury in designating the punishment. That should be determined from the crime proven, and the circumstances of aggravation, the apparent necessity for an example to deter other wrongdoers, and considerations of that nature, and not from the difficulty of obtaining a pardon.

6. Counsel for appellant have discussed at considerable length many questions founded upon the record, which we do not deem it best to notice specifically. They are in the main, in the nature of verbal criticisms of the charge, and do not reach to the merits of the case. Of the objections thus presented, It is only necessary to say that they are not well grounded, or, at most, relate to technical errors, which do not affect any substantial rights, and which we are required to disregard. Code, J 4538. There can be no reasonable doubt that defendant is guilty of the crime of which he was convicted. He commenced to work for his uncle in September, 1891, and worked for him continuously until the time of the murder, excepting some time during the winter, when he attended the Prescott school. In the morning of May 11th, after his uncle left home, his aunt scolded him for permitting the cattle to get into a neighbor's field, which made him angry. At about 10 o'clock he went to Prescott, and while there wrote an order on a merchant of the town, to which he signed a name intended to be that of his uncle, and with it went to a hardware store, where he inquired for revolvers. He was shown one, which he agreed to take if the merchant would accept the order. The order was accepted, and the defendant carried away with him the revolver and a box of cartridges. He states that he purchased the revolver to practice with, and at the time had no intention of shooting any one; that he had half a pint of whisky with him, which he and another person drank, and that he went home about noon; that his aunt was usually kind to him; and that he had not felt any improper desires towards her or his cousin, but when he reached home the cattle were in a neighbor's field. Mrs. Coons scolded him at the dinner table for neglecting the cattle, and they quarreled for some minutes. After dinner, about half past 12 o'clock, she again began scolding him. He had in his pocket a padlock, which he had picked up in the yard for the purpose of unlocking it, but when Mrs. Coons scolded him he became angry, and struck her on the head twice with it, the blows knocked her down. They struggled for a time, and he then shot her. The little girl came running in from the barn, and as she came through the door he struck her on the head with the padlock, and knocked her down; then shot her in the forehead. He placed the bodies on the bed, took a satchel, with clothing, locked the house, harnessed the team to a buggy, and drove away. He further says that he did not recover from his passion sufficiently to realize the enormity of what he had done until he had driven four or five miles. The so-called "confession" was prepared for publication in a newspaper by one of its reporters, and, on the objection of defendant, it was excluded, when offered in evidence; but the objections were withdrawn, and the confession was read. It contains some statements which are shown to be false. One is that he fired seven or more shots into the body of his aunt. A pool of blood outside of the house indicates that one of the persons murdered fell there. The inaccurate statements in the confession are so numerous that it is uncertain how much of it is .true. The jury were authorized to give it such credit as it seemed to deserve, rejecting some portions, and accepting others, as they seemed warranted in doing; but we think they were justified in finding, from the confession and other evidence in the case, that the facts were substantially as we have stated them. The defendant admitted in open court that he was guilty of the unlawful killing of Nellie Coons. It is said that there is no evidence that it was done by lying in wait. But we think the jury may have found, from the circumstances connected with the killing of the mother, the fact that the child was at the barn when her mother was killed, the evident desire of the defendant to effect at least a temporary concealment of the crime, and the further fact that the child was killed at the house, that the murder of the latter was accomplished by means of lying in wait, within the meaning of the law.

7. Counsel for appellant discuss at some length the character of the defendant, as shown by his history. His father died when he was but a few years old. His mother remarried, and he left home when he was about 13 years of age, and worked at different places until he commenced working for his uncle. He seems to have been a quiet, well-behaved boy, who was favorably regarded by those who knew him. He attended school in Prescott a portion of the winter preceding the murder, and during that winter joined a church, and attended Sunday school. He was not an apt pupil, and his mental development, from lack of opportunity or of natural ability, seemed to be a little inferior to the average development of boys of his age. He is described as having the appearance of an easy-going, sluggish fellow, who did not have the perseverance boys of his age and opportunities usually have. He had not drank much intoxicating liquor, but was quite a reader of cheap, sensational novels. After committing the murders, he drove out of town, and stopped for the night only about seven miles away. The next day he drove to Villisca, 25 miles from Prescott, placed the team he drove in a stable, and that evening went to the home of a nephew of Mrs. Coons, and was given a bed for the night. He was there when a dispatch was received by that nephew, notifying him of the death of his aunt and cousin, and a short time afterwards was arrested. There is nothing in the record, excepting the commission of the crimes which were proven, to show that defendant is of a depraved nature. Certainly, he cannot be regarded as a hardened criminal, although guilty of a crime having few parallels, in wanton atrocity, in the history of the state. In view of the youth of the defendant, his lack of mental development, and his almost uniformly good conduct before the crime was committed, we should have been better satisfied had the jury designated imprisonment in the penitentiary for life as his punishment; but, in a legal sense, the evidence was sufficient to authorize the punishment designated, and there is no sufficient ground upon which we can prevent it. We find no error in the record prejudicial to defendant, and the Judgment of the district court is affirmed.

[The Northwestern Reporter, Volume 57, By Iowa Supreme Court, submitted by Cathy Danielson]

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