State v. Bell

• Decision Date: 16 October 1928
• Docket Number: 39296
• Citation: 221 N.W. 521,206 Iowa 816
• Parties: STATE OF IOWA, Appellee, v. EMMETT BELL, Appellant
• Court: Iowa Supreme Court

221 N.W. 521

206 Iowa 816

STATE OF IOWA, Appellee, v. EMMETT BELL, Appellant

No. 39296

Supreme Court of Iowa, Des Moines

October 16, 1928

Appeal from Monroe District Court.--R. W. SMITH, Judge.

Defendant was indicted for bribery or attempt to corrupt a public officer, was convicted, and appeals.

Reversed.

Anderson & Perry and D. W. Bates, for appellant.

John Fletcher, Attorney-general, Neill Garrett, Assistant Attorney-general, Frank A. Nichol, County Attorney, and Fred D. Everett, for appellee.

ALBERT J. STEVENS, C. J., and DE GRAFF, MORLING, and WAGNER, JJ concur.

OPINION

ALBERT, J.

I.

The evidence on the part of the State tends to show, among others, the following facts:

One R E. Canning was a member of the board of supervisors of Monroe County, Iowa, at the time in question. The defendant, Emmett Bell, approached Canning, soliciting the appointment of one Leo Craig as a road patrolman, and said to Canning, "There is $ 200 in it for you if you appoint him." A second approach of a similar character was made on the following day, the 8th day of February, 1927. Again, on February 12th, defendant approached Canning, and said, "Now if you appoint Leo Craig, I can get you $ 200;" and Canning said, "Show me the money."

On the trial of the case, Canning, while on the witness stand, was permitted to testify that he told of the transaction of February 7th to Mr. Lanning, a member of the board of supervisors, and also told several others, the county attorney, the sheriff, and the deputy sheriff. As to the alleged transaction of February 8th, he testified that he told the deputy sheriff, Lanning, and the county attorney about the conversation he had with the defendant. As to the transaction of February 12th, on which the indictment is found, the witness was permitted to testify that he told the sheriff and the county attorney.

Canning testified that, on receipt of the money from the defendant, he went to the auditor's office, where there were present Jimmie Bair, Miss Hope, the county auditor, and a man by the name of Humphrey, and said, "I told them to see what Bell had given me to try to get me to appoint a road man."

It is claimed on the part of the defendant that this line of testimony was wholly incompetent, immaterial, and prejudicial. The question is whether or not the State is permitted to thus support or corroborate its own witness by showing that he made prior consistent statements with that which he made on the witness stand. No story told by a witness can be made more probable or more trustworthy by any number of repetitions. Judge Story, in Ellicott v. Pearl, 10 Peters (U.S.), 412, 439, says:

"His testimony under oath is better evidence than his confirmatory declarations not under oath; and the repetition of his assertion does not carry his credibility further, if so far as his oath."

In State v. Parish, 79 N.C. 610, it is said:

"It can scarcely be satisfactory to any mind to say that, if a witness testifies to a statement today under oath, it strengthens the statement to prove that he said the same thing yesterday, when not under oath. * * * the idea that the mere repetition of a story gives it any force, or proves its truth is contrary to common observation and experience that a falsehood may be repeated as often as the truth. Indeed, it has never been supposed by any writer or judge that the repetition had any force as substantive evidence to prove the facts, but only to remove an imputation upon the witness. * * * If he stood before the court unimpeached, it was unnecessary and mischievous to incumber the court and oppress the defendant with his garrulousness out of court, and when not on oath."

An extended discussion of this question will be found in 2 Wigmore on Evidence, Section 1122 et seq.

In State v. Egbert, 125 Iowa 443, 101 N.W. 191, the defendant was charged with an assault with intent to commit rape. In this peculiar crime, proof of outcry or complaint upon the part of the prosecuting witness is consistent and evidence of that fact or either of these facts is admissible. But notwithstanding the well-known rule, in the Egbert case we said:

"But we know of no authority for admitting proof of the declaration of the prosecuting witness not constituting a part of the res gestae with reference to the identity of the defendant with the person committing the crime. Certainly it is not competent to thus build up a case against defendant by proving declarations of the prosecuting witness with reference to his identity."

In the case of State v. Vincent, 24 Iowa 570, at 574, this court said:

"When the credibility of a witness is impeached by direct testimony of his want of reputation for truth, or of his general moral character (which may be done, under our statute), or by proof of his having made or testified to different and conflicting statements, he cannot be supported by evidence that statements of the facts made by him before the trial correspond with his evidence."

If such evidence cannot be introduced to support a witness where he has been impeached, how could it be used by the State in the first instance? We think it was error for the court to thus permit the defendant to testify to whom he talked, and what he told the various parties named. Further than this, however, the State was permitted to introduce at least one witness, the deputy sheriff, who testified, in substance, that Canning spoke to him on the subject of the proposition defendant had made to him about putting someone on the road work. This evidence was wholly inadmissible. The trouble with both of these propositions lies in the fact that, if they were permitted, the witness would be thereby raising a false issue; and if he told several persons, and each of these persons was permitted to come in and testify that he had so told them, the jury would be liable to lose sight of the merits of the case in the maze of testimony thus introduced on the propositions. As bearing on this proposition, see State v. Stubbs, 49 Iowa 203; State v. Deuble, 74 Iowa 509, 38 N.W. 383; State v. Hoover, 134 Iowa 17, 111 N.W. 323; Rhutasel v. Stephens, 68 Iowa 627, 27 N.W. 786; State v. Porter, 74 Iowa 623, 38 N.W. 514; State v. Williams, 195 Iowa 785, 192 N.W. 901.

II. The defendant introduced witnesses who, after qualifying, testified that his general reputation for honesty in the community where he resided was good. On cross-examination of these witnesses, these questions were asked: "You know of his having been indicted on a charge of liquor nuisance, don't you?"

Another: "Do you know that he has been convicted on two different occasions in this court for maintaining a liquor nuisance and selling intoxicating liquors contrary to law?"

Another: "Don't you know that, in the year 1925, the then county attorney of Monroe county filed an information against Mr. Bell (defendant) in the district court, charging him with maintaining a still out there in your community?"

The previous questions were all answered, "No." The last question was answered: "I heard of it."

Another: "Well, Mr. Pryor, you have said here that Mr. Bell's real character for honesty is good. If you had known that, as a matter of fact, in January, 1919, Mr. Bell had been convicted for maintenance of a liquor nuisance in this county in this district court, would that somewhat change your opinion as to his real character as to honesty?"

The witness answered, "No."

The witness Frew was asked:

"Did you ever hear that, in 1925, there was a county attorney's information filed against him (defendant), charging him with a violation of the liquor law near his home at 18? Did you ever hear it said that, in 1919, Emmett Bell (defendant) entered a plea of guilty here to a violation of the liquor laws, and was sentenced by one of the judges of our court? So, if that is a fact, you don't know anything about it?"

The witness answered, "No."

W. R. Powell was asked:

"Did you ever hear that, in 1915, in the district court of Monroe County here, Emmett Bell was convicted by pleading guilty of a charge of maintaining a liquor nuisance and selling intoxicating liquors? Did you ever hear that again, in the district court of Monroe County, Iowa, in January, 1919, Emmett Bell again pleaded guilty to a charge of maintaining a liquor nuisance, and paid a fine of $ 500 and costs? Mr. Powell, if you had heard or knew of the conviction of Mr. Bell for maintaining a liquor nuisance in the district court of Monroe County, once in October, 1915, and once in January, 1919, that would considerably modify your statements as to what you thought about his real character, wouldn't it? A. Knowing it to be true, it would,--yes."

The witness Armstrong was asked:

"Well now then, didn't you hear and know of Emmett Bell's being convicted of maintaining a liquor nuisance in January, 1919, in the district court of Monroe County, Iowa, and paid a fine and costs on that conviction? A. I heard a little talk about it, but I don't know it. Q. Well, had you ever heard that, in 1915, before that time, that, in the district court of Monroe County, Iowa, Mr. Bell pleaded guilty and was convicted on a charge of selling intoxicating liquor in this court right here--district court? A. No, I hadn't. Q. But you did hear about his conviction in 1919; you told me that, didn't you? A. No, I didn't hear it. Q. Well, if you had known about his conviction, that would materially change your estimate of his real character, wouldn't it? A. Yes, in a way."

Witness Loeb was asked:

"Did you ever hear that, in 1915, Mr. Bell pleaded guilty to selling liquor in this county in this court before one of our judges? A. I heard something of it. Q. Did you hear about either of the instances I have asked...