State v. Anderson

• Decision Date: 07 March 1933
• Docket Number: 41533
• Citation: 247 N.W. 306,216 Iowa 887
• Parties: STATE OF IOWA, Appellee, v. RALPH ALBERT ANDERSON, Appellant
• Court: Iowa Supreme Court

247 N.W. 306

216 Iowa 887

STATE OF IOWA, Appellee, v. RALPH ALBERT ANDERSON, Appellant

No. 41533

Supreme Court of Iowa, Des Moines

March 7, 1933

REHEARING DENIED SEPTEMBER 29, 1933.

Appeal from Boone District Court.--H. E. FRY, Judge.

Defendant was indicted for illegal transportation of intoxicating liquor, and further charging that on April 8, 1929, he was convicted of maintaining a liquor nuisance, and on January 22, 1930, of illegal transportation of intoxicating liquors. The jury returned a verdict of guilty. From a judgment against him, based on the verdict of the jury, he appeals.

Affirmed.

E. L O'Connor, Attorney-general, Walter Maley, Assistant Attorney-general, and L. R. Johnson, County Attorney, for appellee.

Doran Boone & Doran, for appellant.

UTTERBACK, J. KINDIG, C. J., and EVANS, ALBERT, DONEGAN, and STEVENS, JJ., concur.

OPINION

UTTERBACK, J.

The appellant was indicted on the 6th day of October, 1931, by the grand jury of Boone county, Iowa, for the crime of illegal transportation of liquor. The indictment further charged that on the 8th day of April, 1929, he was convicted in the district court of Boone county, for the crime of maintaining a liquor nuisance, and also that on the 22d day of January, 1930, he was convicted in the district court of Boone county, Iowa, for the crime of illegal transportation of intoxicating liquors.

The evidence in the case shows that on the 18th day of June, 1931, James Reid, chief of police of the city of Boone, Iowa, who was also a special deputy sheriff, together with his son, Blaine Reid, and one Raymond Deering, was driving on a country road at a point approximately nine miles east of the city of Boone, when they saw an Auburn coupe automobile, standing along the side of the road. Mr. James Reid stopped his automobile, jumped upon the running board of the Auburn coupe, and found the appellant sitting in the driver's seat. There were five gallons of alcohol in the driver's seat, and also a loaded thirty-eight caliber revolver. The officer searched the coupe and found fifty gallons of alcohol in the rear compartment of the coupe. The alcohol was in one and five gallon cans. The appellant was alone. No one saw him move the automobile. The officer placed the appellant under arrest, took him to Boone, together with the coupe and its contents.

The record shows that on the 8th day of April, 1929, Ralph Albert Anderson was convicted in Boone county of the crime of maintaining a liquor nuisance, and also that on the 22d day of January, 1930, Ralph Albert Anderson was convicted in the district court of Boone county, Iowa, of the crime of illegal transportation of intoxicating liquors.

The witness John Reid, Jr., deputy clerk of the district court of Boone county, Iowa, identified the district court records showing the above convictions. He was the only witness that testified in the case on the question of the identification of the appellant as being one and the same person as the Ralph Albert Anderson, defendant in each of the convictions above referred to.

At the close of the state's testimony, the appellant, by proper motion, moved the court to withdraw from the consideration of the jury the allegations of the indictment respecting prior convictions, and also to withdraw from the consideration of the jury all the evidence respecting the alleged prior convictions, and the identification of the appellant as being one and the same person convicted in said cases. The motion was overruled. Thereafter, the appellant moved the court to direct the jury to return a verdict for the appellant on the grounds set out in the motion. This motion was overruled. The appellant did not testify in the case, nor did he offer any evidence.

After the arguments of counsel had been concluded, the appellant's attorney made the following statement to the court:

"If the court please, let the record show that Mr. Johnson, the county attorney, in his closing argument, made the following statement: 'Mr. Boone represented the county at the prior convictions, here, and that he now represents the defendant at this time; that Mr. Boone, at the time of the prior convictions, was county attorney of Boone county, and there is nobody has a better knowledge as to whether the defendant Anderson, is the same party who was then convicted, than Mr. Boone, and there is nobody has a better knowledge as to whether the defendant Anderson, is the same party who was then convicted, than Mr. Boone, and there is nobody has a better knowledge as to whether the defendant Anderson was the defendant then convicted, than Mr. Boone.' The defendant objects to the statement of the county attorney, as being outside of the record, and as incompetent, immaterial, irrelevant, prejudicial and unfair."

The court sustained the objection of the appellant to the alleged statement of the county attorney, and instructed the jury to wholly disregard the same. There is nothing in the record in the case to show just what the county attorney may have said, other than that above shown. The trial judge was not in the courtroom at the time the alleged statement of the county attorney was made, and the argument was not taken by the court reporter.

The jury returned a verdict finding the appellant guilty of illegal transportation of intoxicating liquor, as charged in the indictment.

In answer to two special interrogatories submitted, the jury found, first, that the appellant was one and the same person as the Ralph Albert Anderson convicted of the crime of liquor nuisance in the district court of Boone county, Iowa, on the 8th day of April, 1929, and also that appellant was one and the same person as the Ralph Albert Anderson convicted of the illegal transportation of intoxicating liquors in the district court of Boone county, Iowa, on the 22d day of January, 1930.

Motions to set aside the finding of the jury as to the special interrogatories, and a motion for a new trial, including exceptions to instructions given by the court, were all overruled, and on the 29th day of January, 1932, the court entered judgment and order committing the appellant to the penitentiary at Fort Madison, Iowa, for a period of not to exceed three years. From which judgment the appellant appeals.

I. Appellant claims the county attorney was guilty of misconduct in argument. No objection was made at the time the alleged statement was made. After the arguments were concluded, the attorney for the appellant made the statement and the objection and motion respecting same, hereinbefore set out. The appellant's objection and motion were sustained and the court instructed the jury to wholly disregard the statement of the county attorney. It should be noted that in this case this court does not have a transcript of the statement made by the county attorney in argument, and is, therefore, not permitted to examine the full statement made nor to know the setting and circumstances under which the statement was made. This court has in the past many times had occasion to express its opinion on the subject of misconduct of argument.

In the case of State v. Scott, 194 Iowa 777, 190 N.W. 370, 372, this court said:

"Perfect procedure or perfect argument is a practical impossibility. In the consideration of such a question, we will look into the whole record in order to determine whether unwarranted conduct was probably prejudicial. If a case were close and doubtful in a material respect, and if the unwarranted conduct is calculated to obscure the point and to deflect the minds of the jury away from it, rather than to invite candid consideration of it, we must, of course, find prejudice more readily than otherwise. We see no way to lay down a hard and fast rule to determine when misconduct in argument or when examination of witnesses is...