State v. Bazoukas

• Decision Date: 20 June 1939
• Docket Number: 44576.
• Parties: STATE v. BAZOUKAS et al.
• Court: Iowa Supreme Court

286 N.W. 458

226 Iowa 1385

STATE v. BAZOUKAS et al.

No. 44576.

Supreme Court of Iowa.

June 20, 1939

Appeal from District Court, Worth County; T. A. Beardmore, Judge.

Defendants appeal from conviction for crime of arson. Opinion states the facts.

Affirmed in part; reversed in part.

L. R Boomhower and N. Levinson, both of Mason City, for appellants.

Fred D Everett, Atty. Gen., Chas. W. Barlow, Co. Atty., of Mason City, and Jens Grothe, Asst. Atty. Gen., for the State.

OLIVER, Justice.

The Boston Cafe, in Mason City, Iowa, was operated by one Zahariades who owned the stock and fixtures, and who also operated the Luxury Cafe, which was diagonally across the street and above which were living rooms occupied by Zahariades and family. Appellants, George and Eugenia Bazoukas, husband and wife, were the parents of Mrs Zahariades, and occupied the apartment with them. George Bazoukas worked in Boston Cafe, and had been in charge of it at times during absences of his son-in-law. George Bazoukas was working in said cafe on January 30, 1938. Mrs. Bazoukas came there about midnight, and shortly thereafter Mrs. Zahariades and a waitress departed, and, except for an occasional customer, the two appellants were thereafter the only persons in said cafe. At 1:20 a. m. (January 31) a witness saw the lights turned out in Boston Cafe. About fifteen minutes later the appellants left said cafe together and walked across the street to their living quarters, George Bazoukas carrying a box. A few minutes later flames from a fire, which started in two places in the basement of Boston Cafe, burst through the first floor. After the fire had burned some portions of the building it was extinguished. Examination disclosed the presence of kerosene soaked clothing, rags, papers, floors and fixtures, boxes of matches at strategic points, and various other details on the first floor and basement which indicated incendiarism.

Taken from appellants, at their rooms, were a few packages of gum, candy, peanuts, cigars and groceries, all from the stock of Boston Cafe, also a coat worn by George Bazoukas with sleeve soaked with kerosene. It appeared that the stock and fixtures had been heavily insured by the son-in-law, and that at the time of the fire the stock was very low and some of the fixtures had been removed. The foregoing statement omits many material matters and is intended only as a bare outline of the circumstances relied upon by the state.

Most of said circumstances were not disputed by appellants. Some were explained. It was claimed the presence of kerosene upon the coat sleeve and upon certain papers and clothes in the cafe resulted from the burning out of the stove pipes by Mr. Bazoukas, at about 10 p. m., on January 30. However, certain customers who were in the cafe at 1. a. m., on January 31, noticed no kerosene or odor therefrom on the clothes of said appellant, or in the Boston Cafe.

Appellants, George and Eugenia Bazoukas, were charged with having set said fire and were jointly indicted, tried and convicted of the crime of arson, from which conviction they prosecute this appeal. At the trial, counsel for appellants in opening statement said, " I think so far as I am concerned that the fire was placed or set by somebody. We are not going to contest that issue."

Appellants' motion for new trial and exceptions to instructions contained the following: " Defendants in the opening statement and throughout the trial conceded that the fire had been set by someone but claimed that they had no part in it."

I.

Error is predicated upon the admission in evidence, over objection, of certain exhibits which had been presented to the grand jury, but had not been filed with the Clerk of the District Court as required by Code, § 13714. In support thereof appellants cite State v. Howard, 191 Iowa 728, 183 N.W. 482; State v. Burris, 198 Iowa 1156, 198 N.W. 82; State v. Campbell, 213 Iowa 677, 239 N.W. 715.The rule of these cases is that said statutory provision is not mandatory but only directory, and that failure to comply therewith does not render such exhibits inadmissible. In State v. Burris, supra, it was said that the trial court, upon application by the defendant, should require the state to permit an inspection, under proper conditions, of such exhibits used before the grand jury as are intended to be offered in evidence upon the trial. Counsel representing appellants in the trial appear to have been advised that the exhibits were in the custody of the sheriff, subject to their inspection. In any event no application was made to the court for such inspection and no prejudice appears to have resulted from the non-compliance with the statute.

II.

Error is assigned to rulings of the trial court in overruling objections to questions relative to other fires, propounded to George Bazoukas on cross-examination, and in refusing to strike said testimony. The record does not show any objections to this line of cross-examination, or motion to strike said testimony. Nor does the record sustain the statement made in argument that the prosecution " persistently" referred to said testimony. No reference thereto by the prosecution is shown.

The only record indication as to what took place is the inference which may be drawn from an instruction requested by appellants that the jurors " have been heretofore admonished that this evidence must not be considered by you at all as against either of the defendants", and that no consideration should be given to such evidence. The court refused the instruction as requested, but did instruct that " this testimony must not be considered."

The record presented to this court leads to the conclusion that the criticized testimony was elicited without objection, that later appellants moved to strike the same and that the court thereupon admonished the jury not to consider it and in his instructions again told the jury to disregard it. No error appears in this connection.

III.

Instruction No. 7 is challenged upon the ground that the court failed to define the meanings of direct and circumstantial evidence, failed to tell the jury that the case of the state was based wholly upon circumstantial evidence and permitted the jury to infer or assume that it was based upon both direct and circumstantial evidence.

In support of this assignment of error appellants cite State v. Mikels, 224 Iowa 1121, 278 N.W. 924; State v. Blydenburg, 135 Iowa 264, 112 N.W. 634, 14 Ann.Cas. 443, and certain other authorities referred to in said cases.

However no request for additional or more explicit instructions was made by appellants. In the absence of such request a trial court does not commit reversible error in failing to fully instruct upon the...