
    The State of Iowa, Appellee, v. John Junkins, Appellant.
    1 Murder: mitigation of death penalty: evidence. On this prosecution for murder resulting in a judgment assessing the death penalty, the evidence is reviewed and held insufficient to show such defective mental and moral capacity of defendant as to justify mitigation of the judgment.
    2 Same: misconduct in argument. Although the argument of counsel for the state that the death penalty ought to be imposed because in the event of life imprisonment there was a probability that defendant might be paroled or pardoned, while improper, was not ground for reversal in this case, because, under the record there was no reasonable probability that the verdict would have been otherwise had the objection to the argument been sustained.
    
      Appeal from Appanoose District Court. — Hon. M. A. Roberts, Judge.
    Friday, June 10, 1910.
    The defendant appeals from a conviction of murder in the first degree. So far as is necessary for an understanding of the case, the facts are stated in the opinion.
    
      Affirmed.
    
    
      Joseph C. Mitchell, Francis M. Hunter, John B. Price, and Clarence BaJcer, for appellant.
    
      II. W. Byers, Attorney-General, and Chas. W. Lyon, Assistant Attorney-General, for the State.
   Weaver, J.

In the early evening of February 5, 1909, Clara Eosen, a reputable young lady residing in the city of Ottumwa, left her home to call upon her sister, Mrs. Nelson, who lived a few blocks distant. Not arriving there, her friends became alarmed and entered upon a search, which resulted after a few hours in the discovery ■of her dead body not far from the Nelson home, in an old cellar or excavation upon a vacant lot from which a building had at some time been removed. Some brush had been thrown over the body, but it was not effectually concealed. That she had met a violent death was clearly apparent. The young woman’s skull had been crushed, and there were indications that the fatal blow had been delivered with a heavy stone found in that vicinity. Her clothes were torn and when found her limbs were exposed. Whether the attack upon her had been made for the purpose of sexual crime is a matter of perhaps not conclusive inference, and. for the purposes of the case, we may concede the contention of appellant’s counsel that this aggravation of the offense is not clearly established. It is clear, however, that the assailant robbed the body of his victim of a diamond ring, bracelet, beads, purse, and other articles of more or less value. Circumstances which we need not pause to relate caused the appellant herein to be suspected of the crime, and he was later arrested and charged therewith. While in jail he signed a written confession of the robbery and murder. In talking with some of the witnesses, he claimed to have had a confederate who assisted in the commission of the crime. An indictment having been returned, counsel were assigned for the defense, and upon their application, the venue was changed to Appanoose county where the trial was had, resulting in a verdict of murder in the first degree and assessing the death penalty. Judgment was entered accordingly.

In submitting the appeal therefrom to this court, counsel concede the guilt of the accused and admit that his conviction of the crime is sustained by the overwhelming weight of the testimony. Their plea for interference by this court is confined td the punishment assesse(l hy the jury, which we are asked to reduce or change to imprisonment for life. The argument, presented with great earnestness and force, is that the appellant has been shown to be a degenerate whose defective mental and moral nature renders him no more responsible for manifestations of criminal violence, than is a member of the brute creation having neither reason nor capacity to understand the moral quality of its act. To take the life of such a person in vindication of law and order is said to be an idle act, for it cannot operate as a deterrent to others of his class, for such as he are the blind slaves of their abnormal passions and criminal tendencies, and when these are aroused to activity the possibility of punishment, however severe; or drastic, will not serve to turn them from their evil purpose. If a man who has led an honorable and lawabiding life becomes insane, and under the influence of a diseased mind, commits an atrocious murder, the law does not demand his life in punishment but contents itself with putting him in confinement, by which to restrain him from other acts of violence. “If, then,” say counsel, “the law interposes the shield of its protection to savé the life 'of a once normal person who has become insane, why should we not be equally reluctant to pronounce the death penalty upon one, who, by reason of a defective organization, moulded by pre-natal limitations and conditions, and developed in vicious environments for which he is not responsible, is also incapable of appreciating moral or social obligations?” Counsel here touch upon a question which is having the increasing attention of students of criminology and kindred topics, and it may be true, as many learned investigators think, that the methods which now prevail of protecting society against its defective and criminal classes are so unscientific in conception and so ineffective in practice that a civilized people should discard them for other and saner schemes of retributive and preventive justice. But, as we have already suggested, the reform must come, if at all, through the lawmaking power, and until then the courts must administer the law as it is written. So long as the death penalty is retained for any offense, the provision of our statute which confides to the jury, and the jury alone, the option of assessing it constitutes a reasonably effective safeguard against its indiscriminate application. It is the chief virtue and value of our jury system that jurors are prone to look upon matters submitted to their consideration in the light of the experience and observation of the average man, and make reasonable allowance for human foibles and frailties, and, generally speaking, it may be taken for granted that the extreme penalty will not be pronounced except in the most marked and flagrant cases. True, there may be times of great popular excitement when the all-pervading atmosphere of prejudice and passion penetrates the inmost chambers of the temple of justice, rendering a fair trial difficult if not impossible. Ordinarily, however, it is within the power of the court, by granting change of venue or by temporary postponement, to insure a trial in which the issues will be fairly considered upon their merits.

In the case at bar the defendant was given a change of venue to another county. Nearly four months intervened before he was brought to trial. He was defended by distinguished, able, and experienced lawyers who have served him with unselfish zeal, and while not stultifying themselves by denying his guilt or asking for his acquittal, have presented every mitigating fact and circumstance in its most persuasive and forcible aspect. There is nothing to indicate that the trial was had under pressure imposed by outside influences, and we are bound to believe that the twelve jurors to whom the appellant’s fate was committed reached the conscientious conclusion that, however defective he may be ixx the attributes which make up a normal human being, he is not so lacking in capacity to distinguish between right and wrong, or in power to resist the leadings of criminal impulse as to justify a mitigation of the pxxnishment which would justly be imposed upoxi him, were he the equal of the average man in x*espect to those qualities. Assuming the correctness of this conclusion, it must be said that if punishment by death may ever be justified, no more flagrant case calling for its infliction was ever tried'than is presented by the record before us. We have not goxxe, nor shall we in this opinion, go minutely into the horrifying details of the appellant’s offense. It is enough to say that in all the history of crixne none more inexcusable was ever committed. It was murder, brutal,, cruel, hideous, and cowardly in the extreme, and assuming the appellant’s íxioral and legal responsibility, the assessment of anything less than the highest punishment provided by law, would be a startling failure of justice.

Nor does the evidence make such a showing of appellant’s defective mental and moral capacity as to permit this court to interfere with the verdict. He had received some degree of educatioxx and was able to read and write. He appears to have known how to .perform acceptable ■ manual labor when disposed to do it. While a slave to drink and drugs, his faculties were not so obscured on the evexxing of his awful crime but that he remembered and related the circumstances attexxding it, and the dispositioxx made by him of the booty taken from the body of his victim. It xnay -be, as couxxsel sixggest, that he is the natural and inevitable product of “Smoky Row” and the slums of the city, and that in a certain just sense the ultimate responsibility for turning out such as he to prey upoxi the innocent and helpless rests upon society or the state which permits, if not legalizes, the conditions which alone make such elimináis possible,- but the development of the ideal state in which crime shall be banished or destroyed by eliminating the causes which produce it is yet beyond our reach. As now constituted, the law ordinarily observes only the overt criminal act of the rational individual and punishes it without attempting to trace the criminal impulse or inclination to its origin. People are born and reared under circumstances varying from wealth, comfort, and wholesome examples and influences on the one hand to poverty, misery, and surroundings of the most unfavorable and corrupting character on , the other, but all are made subject to the same law, and each must render to it the same measure of obedience. This is so because such are our human limitations that a finer discrimination and a juster apportionment of .responsibility is apparently impossible, until we have reached a higher plane of civilization than has yet been achieved. The appellant has been fairly tried under the law as it exists, and we find nothing in the general merits of the case as disclosed by the record which authorizes us to disturb the verdict or judgment.

While several errors are assigned, the only one argued other than as pertains to the measure of punishment has reference to the alleged misconduct of the prosecuting attorney in argument to the jury. The language objected to- was in effect that the death penalty ought to be inflicted because in the event of life imprisonment there was a possibility that appellant might in time be pardoned or paroled. The argument was one which would better have been omitted, and we can conceive of circumstances under which, especially where the case involves other doubtful features, we would be disposed to hold it prejudicial error for the trial court to permit it, but we are united in the view that under the record here presented there is no reasonable probability that the verdict would have been otherwise, had the appellant’s objection to the argument been sustained.

No ground has been shown for reversal or for any mitigation or change in the sentence imposed upon the defendant, and the judgment of the district court is therefore affirmed.  