State v. Allnutt, No. 52063

CourtUnited States State Supreme Court of Iowa
Writing for the CourtLeGRAND; RAWLINGS; BECKER
Citation156 N.W.2d 266,261 Iowa 897
PartiesSTATE of Iowa, Appellee, v. Charles Edward ALLNUTT, Appellant.
Decision Date06 February 1968
Docket NumberNo. 52063

Page 266

156 N.W.2d 266
261 Iowa 897
STATE of Iowa, Appellee,
v.
Charles Edward ALLNUTT, Appellant.
No. 52063.
Supreme Court of Iowa.
Feb. 6, 1968.

[261 Iowa 899]

Page 267

L. M. Hullinger and Margaret L. Beckley, Cedar Rapids, for appellant.

Richard C. Turner, Atty. Gen., David A. Elderkin, Asst. Atty. Gen., and William G. Faches, Linn County Atty., Cedar Rapids, for appellee.

LeGRAND, Justice.

At approximately 3:00 o'clock A.M. on January 14, 1965, while making a routine check of the area, Detective Raymond K. Baker came upon defendant and another man attempting to break into the Hide-A-Way Tavern in Cedar Rapids, Iowa. The detective drew his gun, ordered the men not to move, and radioed for assistance. Defendant, who was armed with a crowbar, advanced toward Detective Baker, despite an order to stop. Defying a second command to stop, defendant struck the officer and knocked him to the ground. As he fell, Detective Baker fired one shot which struck defendant in the chest.

Further police investigation revealed two other crowbars and a screwdriver near the door of the tavern. The door itself was not opened but had been tampered with and showed gouge and splinter marks. Directly beneath the door were wood chips which matched the damaged portions of the door frame. The manager of the tavern testified he had locked the premises shortly before the time in question. Both the door and the door jamb were then undamaged. He also testified that he kept both merchandise--principally liquor, beer and cigarettes--and money in the tavern.

The above recitation, although not without dispute, is the version of the evidence most favorable to the State, and we are obliged to view it in this light in considering defendant's appeal. State v. Harless, 249 Iowa 530, 86 N.W.2d 210; State v. Poffenbarger, 247 Iowa 552, 74 N.W.2d 585 and citations; State v. Wimbush, Iowa, 150 N.W.2d 653, 654.

As a result of this incident defendant was charged by county attorney's information with attempting to break and [261 Iowa 900] enter with intent to commit larceny in violation of section

Page 268

708.10, Code of Iowa. He was subsequently tried and convicted of this crime, and he appeals, relying on four errors which he claims require reversal: (1) That he was denied a speedy trial in violation of section 795.2, Code of Iowa; (2) That he was entitled to a directed verdict for the State's failure to prove intent to commit larceny; (3) That it was prejudicial error to specially instruct the jury on his credibility as a witness; and (4) That it was prejudicial error to permit the County Attorney to cross-examine him concerning previous felony convictions.

I. In his first assignment of error defendant asserts his conviction cannot stand because the State failed to give him a speedy trial, as required under section 795.2, Code of Iowa, which provides:

'Delay in trial. If a defendant indicted for a public offense, whose trial has not been postponed upon his application, be not brought to trial at the next regular term of the court in which the indictment is triable or within sixty days, whichever first occurs, after the same is found, the court must order it to be dismissed, unless good cause to the contrary be shown. An accused not admitted to bail and unrepresented by legal counsel shall not be deemed to have waived his privilege of dismissal or be held to make demand or request to enforce a guarantee of speedy trial, and the court on its own motion shall carry out the provisions of this section as to dismissal.'

The indictment (in this case, a county attorney's information) against defendant was filed January 20, 1965. He was not brought to trial until June 14, 1965, almost five months later. Defendant claims the 60-day limitation is applicable here and that he should have been tried within 60 days from January 20; that he demanded a speedy trial; and that his motion for dismissal made After trial should have been sustained.

Section 795.2, Code of Iowa, implements Article I, Section 10, of the Constitution of Iowa. State v. Gebhart, 257 Iowa 843, 847, 134 N.W.2d 906, 908. Defendant's right to a speedy trial is also guaranteed by Amendment 6 to the Constitution of the United States, which was recently made applicable[261 Iowa 901] to the trial of criminal charges in state courts. Klopfer v. State of North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1.

The purpose of these protections, both constitutional and statutory, is to relieve one accused of a crime of the hardship of indefinite incarceration awaiting trial or the anxiety of suspended prosecution, if at liberty on bail, and to require courts and peace officers to proceed with the trial of criminal charges with such reasonable promptness as proper administration of justice demands. 21 Am.Jur.2d, Criminal Law, section 242, page 279; McCandless v. District Court of Polk County, 245 Iowa 599, 607, 61 N.W.2d 674, 679. An extended discussion of the history and purpose of the rule appears in Pines v. District Court etc., 233 Iowa 1284, 10 N.W.2d 574.

It has long been held, both in this state and elsewhere, that a defendant, unless he is neither admitted to bail nor represented by counsel, may waive the constitutional and statutory provisions assuring him a speedy trial. 21 Am.Jur.2d, Criminal Law, section 253, page 289; State v. Rowley, 198 Iowa 613, 615, 198 N.W. 37, 38, 199 N.W. 369; McCandless v. District Court of Polk County, 245 Iowa 599, 604, 61 N.W.2d 674, 677; Pines v. District Court etc., 233 Iowa 1284, 1302, 10 N.W.2d 574, 583; State v. Long, 256 Iowa 1304, 1307, 130 N.W.2d 663, 665. Defendant here was at all times represented by counsel and the exception in the statute therefore has no application.

Since it is undisputed defendant was not brought to trial within 60 days from the filing of the county attorney's information, he is entitled to a dismissal under section 795.2 unless he has waived his right to a speedy trial or unless good cause for postponing the trial beyond that time is shown.

Page 269

Defendant argues that only the question of good cause is before us because he made a demand for a speedy trial at the time of arraignment, which negates any question of waiver. For reasons stated later we do not agree. We hold both waiver and 'good cause' under the statute are presented for determination, although our conclusion as to the former makes it unnecessary to discuss 'good cause.'

Defendant, having admittedly made a request for a speedy [261 Iowa 902] trial at the time of arraignment, claims he has done all he was required to do and the court must, under the language of the statute, dismiss the charge unless the State shows good cause why trial was delayed beyond 60 days from the filing of the information. The State, on the other hand, asserts it is not enough for defendant merely to request a speedy trial. He must also, the State argues, demand dismissal of the charge by timely motion before trial or he waives his rights under the statute. A discussion of this matter necessitates a brief recitation of the factual background.

As already mentioned defendant suffered a gunshot wound at the time of his arrest. He was present in court when arraigned but was taken directly from arraignment to the hospital at the Men's Reformatory, Anamosa, Iowa, where he was serving a term on another conviction. Defendant was hospitalized from January 20th to February 22nd. Thereafter from time to time until April 5th he returned to the hospital for periods of treatment or examination. Neither defendant nor his attorney notified the court or the county attorney when defendant was released from the hospital, although the county attorney and defendant's counsel had several conferences concerning the case during this period. On June 8, 1965, the county attorney filed an application stating the defendant was able to stand trial and asking his return from the Men's Reformatory for that purpose. This application was granted and trial was set for June 14, 1965, just one week later. On June 14th, prior to the start of the trial, defendant filed a motion to quash on other grounds and made no mention then of his right to dismissal under section 795.2. The case proceeded to trial, and no request for a dismissal under that statute was made until defendant filed his motion for new trial after the jury returned a guilty verdict against him.

We have already pointed out when a defendant may waive the constitutional and statutory provisions which assure him a speedy trial. However, we have never been asked to decide the precise issue now presented. May a defendant postpone his motion under section 795.2, Code of Iowa, until after trial and then secure a dismissal of the offense for which he has been convicted?

[261 Iowa 903] A somewhat similar matter was presented but not determined in State v. Jackson, 252 Iowa 671, 108 N.W.2d 62, where the decision was based on other grounds. In those states where this problem has arisen, it is almost universally held a defendant who has been denied a speedy trial must move for dismissal before going to trial. Failure to do so constitutes a waiver of his rights. 21 Am.Jur.2d, Criminal Law, section 253, page 290; 22A C.J.S. Criminal Law § 470, page 41; Randolph v. State, 234 Ind. 57, 122 N.E.2d 860, 864; People v. Stahl, 26 Ill.2d 403, 186 N.E.2d 349, 350; People v. White, 2 N.Y.2d 220, 159 N.Y.S.2d 168, 140 N.E.2d 258, 260; People v. Wilson, 60 Cal.2d 139, 32 Cal.Rptr. 44, 383 P.2d 452, 457; annotations, 57 A.L.R.2d 302, 336.

In Randolph v. State, supra, the court said, 'It has generally been held that the right to a discharge for delay in bringing a defendant to trial is waived if the proper motion is not made before the trial begins. (citations) * * * In this case appellant participated in the trial without objection. By his acquiescence and participation in the trial appellant conclusively waived his rights under the statute. By such acts he...

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52 practice notes
  • United States v. Melton, No. 72-1357.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 26, 1973
    ...Rossi, 112 Ill.App.2d 208, 250 N.E.2d 528 (1969); Strait v. State, 41 Wis.2d 552, 164 N.W.2d 505 (1969); State v. Allnutt, 261 Iowa 1083, 156 N.W.2d 266 (1968); People v. Walters, 249 Cal.App. 547, 57 Cal.Rptr. 484 (1967); People v. Lambo, 8 Mich.App. 320, 154 N.W.2d 583 (1967); Briones v. ......
  • State v. Everett, No. 52203
    • United States
    • United States State Supreme Court of Iowa
    • March 5, 1968
    ...or matters affecting his credibility are concerned.' State v. Voelpel, 208 Iowa 1049, 1050, 226 N.W. 770, 771; State v. Allnutt, Iowa, 156 N.W.2d 266, filed Feb. 6, 1968; Gaskill v. Gahman, 255 Iowa 891, 896, 124 N.W.2d 533; State v. Haffa, 246 Iowa 1275, 1283, 71 N.W.2d 35, Section 622.17,......
  • State v. Drake, No. 60251
    • United States
    • United States State Supreme Court of Iowa
    • November 23, 1977
    ...L.Ed.2d 627, 630 (1966) See United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468, 478 (1971); State v. Allnutt, 261 Iowa 897, 901, 156 N.W.2d 266, 268 In Barker v. Wingo, 407 U.S. 514, 519-521, 92 S.Ct. 2182, 2186-2187, 33 L.Ed.2d 101, 110-112 (1972), the Supreme Co......
  • State v. McClelland, No. 52825
    • United States
    • United States State Supreme Court of Iowa
    • January 14, 1969
    ...view the evidence in the light most favorable to the State. State v. Frink, 255 Iowa 59, 64, 120 N.W.2d 432, 435; State v. Allnutt, Iowa, 156 N.W.2d 266, 267; State v. Anderson, Iowa, 159 N.W.2d 809, The quality of evidence necessary to convict, whether it be circumstantial or direct, must ......
  • Request a trial to view additional results
52 cases
  • United States v. Melton, No. 72-1357.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 26, 1973
    ...Rossi, 112 Ill.App.2d 208, 250 N.E.2d 528 (1969); Strait v. State, 41 Wis.2d 552, 164 N.W.2d 505 (1969); State v. Allnutt, 261 Iowa 1083, 156 N.W.2d 266 (1968); People v. Walters, 249 Cal.App. 547, 57 Cal.Rptr. 484 (1967); People v. Lambo, 8 Mich.App. 320, 154 N.W.2d 583 (1967); Briones v. ......
  • State v. Everett, No. 52203
    • United States
    • United States State Supreme Court of Iowa
    • March 5, 1968
    ...or matters affecting his credibility are concerned.' State v. Voelpel, 208 Iowa 1049, 1050, 226 N.W. 770, 771; State v. Allnutt, Iowa, 156 N.W.2d 266, filed Feb. 6, 1968; Gaskill v. Gahman, 255 Iowa 891, 896, 124 N.W.2d 533; State v. Haffa, 246 Iowa 1275, 1283, 71 N.W.2d 35, Section 622.17,......
  • State v. Drake, No. 60251
    • United States
    • United States State Supreme Court of Iowa
    • November 23, 1977
    ...L.Ed.2d 627, 630 (1966) See United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468, 478 (1971); State v. Allnutt, 261 Iowa 897, 901, 156 N.W.2d 266, 268 In Barker v. Wingo, 407 U.S. 514, 519-521, 92 S.Ct. 2182, 2186-2187, 33 L.Ed.2d 101, 110-112 (1972), the Supreme Co......
  • State v. McClelland, No. 52825
    • United States
    • United States State Supreme Court of Iowa
    • January 14, 1969
    ...view the evidence in the light most favorable to the State. State v. Frink, 255 Iowa 59, 64, 120 N.W.2d 432, 435; State v. Allnutt, Iowa, 156 N.W.2d 266, 267; State v. Anderson, Iowa, 159 N.W.2d 809, The quality of evidence necessary to convict, whether it be circumstantial or direct, must ......
  • Request a trial to view additional results

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