State v. Anderson
| Decision Date | 06 May 1949 |
| Docket Number | No. 47302.,47302. |
| Citation | 36 N.W.2d 378 |
| Parties | STATE v. ANDERSON. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Woodbury County; R. W. Crary, Judge.
Defendant was convicted of keeping a house of ill fame in violation of section 724.3, Code 1946. She has appealed.
Affirmed.Gorder & Hockenbury, of Sioux City, for appellant.
Robert L. Larson, Atty. Gen., Don Hise, 1st Asst. Atty. Gen., and Edward L. Moran, Co. Atty., of Sioux City, for appellee.
Defendant's principal complaints upon this appeal are against the court's instructions to the jury.
The verdict of guilty was filed January 30, 1948. Thereupon the court ordered that ‘defendant have 15 days from this date in which to file motion for new trial.’ No objection was made or exception taken to the order. Presumably it was made with consent of defendant's then counsel (who was apparently chosen by defendant) if indeed not actually at his request. Sometime thereafter (the record does not show when) defendant's present counsel were retained to prepare a motion for new trial which was filed March 28, 1948. The objections and exceptions to the instructions were first stated in this motion. Defendant's present counsel who have ably presented this appeal admit in argument the exceptions to the instructions were ‘belatedly filed.’
As required by rule 196, Rules of Civil Procedure, made applicable to the trial of criminal actions by section 780.4, Code 1946, and to the instruction of juries therein by Code, section 780.35, before reading the instructions to the jury the trial court submitted them to counsel in their final form. No objections to the instructions were then made.
[1] Failure to make such objections under rule 196 did not prevent defendant from making them in her motion for new trial under Code, section 787.3, which is not affected by the Rules of Civil Procedure. Section 787.3 states as two of the causes for granting a new trial that ‘the court has misdirected the jury in a material matter of law’ and ‘has refused properly to instruct the jury.’ See State v. Holder, 237 Iowa 72, 83, 84, 20 N.W.2d 909, 915;State v. Hartung, Iowa, 30 N.W.2d 491, 497;State v. Hamann, 109 Iowa 646, 647, 80 N.W. 1064.
[2] Code, section 787.2, provides the application (usually referred to as the ‘motion’) for new trial ‘must be made before judgment.’ If it were not for the order that defendant have 15 days from January 30 to file motion for new trial, such motion here would have been filed in time because it was before judgment.
But where as here there is an order allowing a definite, reasonable time within which to move for a new trial and no objection is made or exception taken to such order, we think such motion must be filed within the time specified in the order. We hold therefore defendant is not entitled to have her exceptions to instructions considered by us because they were not made within the time provided by the order of January 30.
[3] There is no question that a defendant in a criminal case may waive errors in the lower court such as are here asserted which he might otherwise assign upon appeal. We have repeatedly so held. Failure to object to the instructions within the time allotted by the court for filing motion for new trial, there having been no objection to the time so specified, must be taken as a waiver of the right to object to the instructions at any time before judgment.
[4]State v. Hartung, supra, Iowa, 30 N.W.2d 491, 497, is analogous on principle. See also 23 C.J.S., Criminal Law, §§ 1341, 1342, and as having some bearing State v. Philpott, 222 Iowa 1334, 1346, 1347, 271 N.W. 617, and citations; State v. Bamsey, 208 Iowa 796, 800, 801, 223 N.W. 873, and citations; State v. Conroy, 133 Iowa 195, 110 N.W. 437;State v. Smith, 108 Iowa 440, 447, 448, 79 N.W. 115. That exceptions to instructions and motions for new trial must be filed in time or they will usuablly be disregarded by this court is recognized in State v. Kirkpatrick, 220 Iowa 974, 976, 263 N.W. 52;State v. Higgins, 192 Iowa 201, 203, 182 N.W. 887.
We have reversed convictions in State v. Barr, 123 Iowa 139, 98 N.W. 595;State v. Burns, 181 Iowa 1098, 165 N.W. 346, and perhaps some other decisions where errors, though not properly preserved, were such that defendant was denied a fair trial. But we think this defendant was not denied a fair trial.
[5] Defendant's principal complaint is against the court's failure to instruct the jury they could find at least some of the prostitutes who testified for the state were accomplices whose testimony must be corroborated as required by section 782.5, Code 1946. No instructions were requested. Without determining whether the jury could find any of these witnesses was an accomplice or whether failure to instruct on the necessity for corroboration, in the absence of request, was error, we may observe that we have recently characterized as ‘purely technical’ such a complaint as defendant makes here. State v. Hartung, supra, Iowa, 30 N.W.2d 491, 497.
[6] Another respect in which it is claimed the trial was unfair is the court's failure to instruct even without request on what is said to have been the theory of the defense that any acts of prostitution committed in the so-called hotel in question were unknown to defendant who admitted she was the manager of the hotel. (The hotel consisted of four apartments and seven or eight sleeping rooms, all on the second floor.) This alleged error now urged against the instructions is not mentioned in defendant's belatedly filed motion for new trial and exceptions to instructions and we would certainly be justified in ignoring it. State v. Hofer, 238 Iowa 820, 832, 28 N.W.2d 475, 481, and citations; State v. Grigsby, 204 Iowa 1133, 216 N.W. 678.
As said in State v. Cox, Iowa, 34 N.W.2d 616, 619, our latest pronouncement on the subject, ‘we have often said the defendant who fails to request an instruction on his theory of defense is in no position to complainwhen the court does not instruct on such theory.’ See also State v. Schenk, 236 Iowa 178, 194, 195, 18 N.W.2d 169, 177, and citations; State v. Wilson, 235 Iowa 538, 545, 17 N.W.2d 138, 142, and citations. Under the circumstances of State v. Cox, supra, we reversed the conviction because of the omission, even without request, to instruct on the theory of the defense coupled with prejudicial error in a vital instruction. The present case is not comparable to the cited one.
[7] We think this particular complaint now urged against the instructions is without merit in any event. It sufficiently appears from the instructions that defendant could be convicted only if she had guilty knowledge. The jury was instructed to convict only if they found defendant unlawfully and feloniously kept the place in question as a house of ill fame.
[8] The remaining basis for the claim of unfair trial is the giving of an instruction on the weight to be given defendant's own testimony without instructing on the credibility of the prostitutes who, it is contended, were impeached. The instruction on the weight of defendant's testimony includes substantially this statement,...
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