Ford v. Dilley

• Citation: 174 Iowa 243,156 N.W. 513
• Decision Date: 18 February 1916
• Docket Number: No. 30938.,30938.
• Parties: FORD v. DILLEY, SHERIFF OF WOODBURY COUNTY.
• Court: United States State Supreme Court of Iowa

174 Iowa 243

156 N.W. 513

FORD

v.DILLEY, SHERIFF OF WOODBURY COUNTY.

No. 30938.

Supreme Court of Iowa.

Feb. 18, 1916.

Appeal from District Court, Woodbury County; W. G. Sears, Judge.

Appeal by petitioner from order in habeas corpus denying bail on indictment for murder in the first degree. Respondent attempts cross-appeal from trial rulings against him. On appeal of Ford reversed and appeal of Dilley dismissed.

Evans, C. J., dissenting in part. Deemer and Preston, JJ., dissenting.Oliver, Harding & Oliver, of Sioux City, for appellant.

George Cosson, Atty. Gen., O. T. Naglestad, Co. Atty., and J. W. Kindig and D. G. Mullan, Asst. Co. Attys., all of Sioux City, for appellee.

SALINGER, J.

[1] I. The defendant obtained all he sought, an order denying the application of plaintiff. What has he to appeal from, since petitioner was denied bail, and kept in custody of defendant? Suppose petitioner had not appealed. Could we have entertained an appeal of defendant to have it determined whether rulings which did not prevent defendant from winning were correct? If not, neither have we power to review those rulings merely because the losing party has appealed. We are of opinion we have no jurisdiction to entertain the appeal of defendant.

[2] II. But it does not follow, of necessity, that we are relieved from a consideration of the propriety of the said rulings. The general rule that one who is satisfied with the result below has no occasion to, and may not, urge error, is bottomed on the thought that one who succeeded in spite of all rulings against him has no occasion to complain, because, manifestly, he has suffered no prejudice. A rule resting on such foundation may not be applied where it is apparent the successful litigant will suffer prejudice if review of errors against him be denied. Where the record exhibits errors against appellee from the commission of which he cannot appeal, and such errors make harmless the errors against appellant, it would work prejudice to appellee to take away the judgment in his favor, which is on the whole record a right judgment, by the method of refusing to pass upon whether the claim of error against appellee was well founded.

We think we have settled in terms, and at all events in principle, that where error against appellee may make harmless the assignments of appellant, we should determine in the first appeal that presents this situation whether any such error has been committed against appellee. See Voorhees' Case, 108 Iowa, 85, 78 N. W. 795, followed in Kelso's Case, 110 Iowa, 565, 81 N. W. 805, and Royer's Case, 147 Iowa, 277, 281, 126 N. W. 168. And the principle is clearly asserted in Campbell v. Park, 128 Iowa, 181, 101 N. W. 861, 104 N. W. 799, which holds that, in reviewing the correctness of a ruling directing a verdict, we consider, at least for the losing party, all evidence that was proper to go to the jury, though it was stricken out below.

The contrary rule can effectuate nothing but a promotion of a multiplicity of suits and appeals. One who loses a judgment which can be found to be erroneous only upon excluding from consideration errors against him would simply have to carry the burden of retrial and reappeal until the error against him was not repeated, or, if repeated, until judgment below went against him. Then and not until then could he get a pronouncement that there was error to his prejudice in excluding testimony by him offered--precisely what could be accomplished on the very first appeal by considering what bearing the excluded testimony has on whether an appealed judgment was right upon all the proper evidence, admitted or excluded. On any other rule appellee would be in better case if he were defeated below and came here as appellant on the very first appeal. Any other rule would compel appellee to pay for “victory” with a silence that takes such victory from him. We hold appellee may on the appeal against him urge that upon the record he has so been erred against as that if this is corrected the judgment is right, although errors were committed against appellant which, if there were not such counter errors, would require a reversal. In essence, it is but proving by the record affirmatively that errors complained of worked no prejudice in law.

[3] III. We think it was not error to refuse to consider that petitioner is in custody under other indictments as to which he has been admitted to bail. That bail has been allowed on the other indictments is no reason against an order admitting to bail on the indictment for murder also. Suppose one had been admitted to bail on three indictments, and denied bail on a fourth, which was confessedly bailable; what bearing has the admitting to bail, which was right, upon saving the denial, which was wrong? If nothing else will avail, it is certainly a sufficient reason for not giving bail on the three indictments that to give it, while bail was refused on the other, will not give liberty.

[4] 2. It was right to strike out allegations that the purpose of petitioner in applying for bail was to intimidate witnesses for the state. The Constitution gives right to bail unless the evidence of guilt be of a certain degree. And, if entitled to bail, detention without bail is not a substitute for a peace bond, or a method of crime prevention.

[5] 3. The plea of adjudication is not tenable, even if it be assumed appeal lies from a denial of a motion to admit to bail. While the motion was denied, it was with express statement that the ruling was “without prejudice to said defendant's right to present said matter by habeas corpus.” This, is, in effect, a ruling in abatement, rather than on the merits--in effect, a decision that the right sought should be obtained in some proceeding other than a motion to be allowed bail; and rulings other than on the merits are not adjudications.

[6][7] Such reservations are not idle. Courts of last resort make such. For instance, in West's Case, 10 N. D. 464, 88 N. W. 90, the Supreme Court of North Dakota denied an application for bail “for the time being,” and with the statement that the refusal is not to operate as a bar to any future application. Moreover, the statute itself has provided what alone shall stand in the way of an application in habeas corpus, and that is that there shall not have been denied an earlier application in habeas corpus. It is competent for the Legislature to enact that what is else concededly an adjudication shall not bar an application in habeas corpus. It can enact, as it has done as to some cases, that successive applications in habeas corpus may be entertained. In effect, the statute, as said, makes such ruling as was here had inoperative as a bar against this application. And, additionally, rulings on motions made pending suit are not, in a strict sense, an adjudication. See In re Ellenberger, 153 N. W. 1040, par. 5.

We conclude that in the respects complained of no error was committed against the appellee.

Division II.

[8][9] I. We think the stipulations made by the parties are effective, and this includes the failure of defendant to object to the minutes of the testimony before the grand jury, when put in evidence. This notwithstanding the broad language of State v. Rosencrans, 65 Iowa, 384, 21 N. W. 688. Were we to give to all said therein a literal meaning, it would not be permitted the defendant in habeas corpus to test the petition by demurrer. Properly construed and restricted to the record in the case, the decision is right. It but rules that, since the public is concerned, the defendant sheriff may not by agreeing to an interpretation of the evidence asserted in the petition, and agreeing that defendant is held merely because of such evidence, so construed, in effect agree that the prisoner be discharged. If there is anything in the Rosencrans Case that compels a defendant to put the plaintiff to the proof of facts admitted by plaintiff which will defeat plaintiff unless plaintiff avoids them, it should be so far overruled. But concessions may not settle for the court what public law is. See Tuttle v. Pockert, 147 Iowa, 43, 125 N. W. 841. One applicant for bail might not be able to get the concessions obtained by another, and the people of the state are entitled to know what is the law on public questions, rather than what we find it to be upon agreement of parties. The instant case proves the wisdom of not deciding on such basis. We find respondent urging that the minutes are, and also that they are not, entitled to consideration, and both sides so conceding, and modifying, and withdrawing, and reasserting concessions, as that it would be highly perilous to build a decision upon admission. We therefore proceed by applying to the record what is our view of law and reason.

[10] II. Petitioner is not entitled to bail unless we can find on the record before us that the proof of his being guilty of a capital offense is less than evident, and the presumption of his being thus guilty less than great. Const. art. 1, § 12. So far, the parties seem to agree; and, if they disagree, they should not. Who has the burden of proof here?

[11] Our answer here is, however, no decision upon what probative weight should be given an order that one be taken into and kept in custody without bail, or an order denying a motion for bail, upon appellate review of such order, because no such question is presented on this record--a limitation of issues which the minority overlooks. In other words, what we decide is whether the mere existence of an indictment charging a capital offense puts the burden of proof upon the applicant for bail; whether such presumption arises from the mere finding of such an indictment as that the burden is cast upon the person detained under such indictment to show, initially at least, and affirmatively, the negative fact that the proof of murder in the first degree is not evident nor the presumption thereof great. This inquiry is...