State v. Bolds, 48076

• Citation: 55 N.W.2d 534,244 Iowa 278
• Decision Date: 11 November 1952
• Docket Number: No. 48076,48076
• Parties: STATE v. BOLDS.
• Court: United States State Supreme Court of Iowa

Page 534

55 N.W.2d 534

244 Iowa 278

STATE v. BOLDS.

No. 48076.

Supreme Court of Iowa.

Nov. 11, 1952.

Rehearing Denied Jan. 16, 1953.

Verne Lawyer, of Des Moines, for appellant.

Robert L. Larson, Atty. Gen., Raphael R. R. Dvorak, Asst. Atty. Gen., and Clyde E. Herring, County Atty., Des Moines, for appellee.

THOMPSON, Justice.

On November 1, 1951, the Polk county grand jury returned an indictment against the defendant accusing him of the crime of forgery by signing the name of one Alex Ward to a note to the Aetna Finance Company. It was also charged that the defendant had been twice convicted of the crime of burglary in Kane and Rock Island counties, in Illinois. Upon his plea of not guilty the defendant went to trial and was convicted of the offense charged. In response to interrogatories the jury found he had been convicted in Illinois as alleged. The trial court thereupon, after overruling motions to dismiss the indictment and for judgment notwithstanding verdict, for new trial and to set aside the special findings, sentenced the defendant to a term of not to exceed twenty-five years in the state penitentiary under the provisions of Code section 747.5 I.C.A. From this judgment the defendant prosecutes his appeal.

Defendant's assigned errors are eight in number but they are argued in two divisions only since they fall into two major categories and depend upon what his counsel think are the two points upon which the trial court was mistaken in its application of the law. It is not contended there was not sufficient evidence to submit to the jury concerning defendant's guit of the offense of forgery charged.

1. The first proposition argued centers around the claimed error of the court in admitting certain evidence of other transactions. They were later stricken out, but defendant urges the evidence was of that type which is so peculiarly prejudicial that, once heard by the jury, no ruling or admonition of the court can remove it from the minds of the jurors or prevent it from influencing their verdict. A motion for a mistrial was made and denied.

The items of evidence which brought on this contention show an attempt on the part of the state to prove the defendant tried to secure moneys from other finance companies by similar methods used in his dealings with the Aetna Finance Company. On the 14th of April, 1951, he called at the office of the latter concern, represented himself to be one Alex Ward, executed a note and wage assignment, and received about $100. On the 16th of the same month he returned and received an additional loan in the sum of $107, again signing the name of Alex Ward. Whether the second loan was in addition to the first or the first was paid by the second is not clear, and is immaterial. It is the transaction with this company upon which the charge of forgery herein is based.

Whilliam H. Dunkin, personal loan manager for the Iowa Guarantee Company, also located in Des Moines, testified, over objection, that on April 19, 1951, the defendant called at the office of his company, representing himself to be Alex Ward, and signed in the latter's name a note and a wage assignment. No money was advanced to him on these papers.

Don E. Williamson, manager of the Jay Barmish Loan Company, testified that on April 19, 1951, the defendant came to the company's office, said he was Alex Ward and asked for a loan. So far as the record shows no loan was made him and no papers signed.

After the testimony of these two witnessed had been admitted over objection, the court struck it from the record and so advised the jury; and at the close of all the evidence the jury was admonished that 'in consideration of your verdict you will give no weight or consideration to the testimony of the two witnesses William H. Dunkin and Williamson.' Defendant contends the error first committed was so prejudicial that striking it from the record and admonishing the jury would not remedy the harm done.

We think the matter is largely in the discretion of the trial court. State v. Warren, Iowa, 47 N.W.2d 221; Connelly v. Nolte, 237 Iowa 114, 21 N.W.2d 311; State v. Wheelock, 218 Iowa 178, 254 N.W. 313; State v. Cooper, 169 Iowa 571, 151 N.W. 835. It does not appear there was an abuse of discretion here. Jurors have sworn to try the case in accordance with law and the instructions of the court, and is only in extreme cases that we can presume they have disregarded their oaths and ignored the strong direction of the court which told them they must not consider stricken testimony. No such situation appears here.

We think also there is a still more cogent reason why no error was committed at this point, at least against the defendant. Error against the state appears. In other words, the stricken testimony was properly admissible and should have remained in the record. Evidence of other offenses is ordinarily not admissible, but when malice or intent is involved or other transactions tend to show a general scheme or course of conduct on the part of the accused, an exception to the rule comes into play. In State v. McWilliams, 201 Iowa 8, 9, 206 N.W. 114, 115, we said:

'The crime of uttering a forged instrument is one of the exceptions to the general rule that the commission of other crimes may not be shown against the accused. It belongs in the class where other like offenses committed by the defendant and connected in point of time or circumstances with the crime charged may be shown, to establish guilty knowledge or intent on his part.' See also, State v. Gibson, 228 Iowa 748, 292 N.W. 786; State v. Cordaro, 206 Iowa 347, 349, 350, 218 N.W. 477; 22 C.J.S., Criminal Law, § 691, pp. 1135-1139, inclusive.

There must ordinarily be some relation in time between the offense charged and the other offenses, or attempted offenses, shown. Such there was here. The forgery at the Aetna Finance Company was on April 16, 1951; the attempts at the Iowa Guarantee and the Jay Barmish Company were on April 19th.

It seems to have been defendant's thought, as shown by his counsel's objections, that the Iowa Guarantee and Barmish transactions were not admissible because they were not in fact 'other offenses.' It is true there must be a showing that the signing of the name of the purported market of the instrument was without his authority. State v. Prins, 113 Iowa 72, 74, 75, 84 N.W. 980. But there was such proof here. Alex Ward, whom defendant represented himself to be to all three of the loan companies, testified: 'I did not give him (defendant) permission to sign my name to any instrument whatsoever.'

Nor is there merit to counsel's contention that the signing of the note and wage assignment at the office of the Iowa Guarantee Company was not a forgery because it harmed no one; in other words, that defendant's nefarious purpose having been thwarted by a refusal of the intended victim to go through with the loan, no crime was committed. Our statute on forgery, Code section 718.1, I.C.A. provides 'if any person, with intent to defraud' etc. It is not necessary that anyone be actually defrauded; the attempt to defraud, the intention to do so is sufficient. State v. Jamison, 74 Iowa 613, 616, 38 N.W. 509; State v. Wooderd, 20 Iowa 541, 547; State v. Pierce, 8 Iowa 231, 235; State v. Carter, 222 Iowa 474, 477, 269 N.W. 445. Here, the defendant signed the papers and their delivery was complete, as was the offense committed.

A somewhat different situation is shown in reference to the testimony of Don E. Williamson, manager of the Barmish Company. Apparently the matter did not get beyond the negotiation stage, and no papers were prepared or signed. So, the offense of forgery was not committed. But we think the evidence was admissible. It was a transaction tending to show a course of conduct, a general scheme on the part of the defendant, and he cannot take refuge in the fact that his attempt was unsuccessful. It would be a strange rule of law which would hold that while other forgeries might be shown, attempts to commit them could not be. There was no error prejudicial to defendant shown by the matters discussed in this division.

II. Further error is predicted upon the complaint there was no sufficient proof of the two convictions of felonies alleged to have been entered against the defendant in Illinois. It is the contention that there was insufficient evidence of defendant's identify with the person so convicted. The state sought to prove this part of its case by introducing certified transcripts of the records in Kane and Rock Island counties, Illinois, and by the testimony of one Lester Acord, a guard at the Illinois State Penitentiary at Stateville for more than 32 years.

The authenticated transcript from Kane County shows that, on September 10, 1928, one William Bolds having been convicted by a jury of the offense of burglary, he was sentenced to confinement in the Illinois State Penitentiary. The transcript from Rock Island county recites that William Winfield Bolds was convicted in that county of the offense of burglary on February 28, 1946, and was sentenced to confinement in the State Penitentiary. Our statute, section 747.6, provides that duly authenticated copies of former judgments and commitments 'shall be competent and prima facie evidence of such former judgment and commitment, and may be used * * * upon the trial of said cause.' We upheld the admissibility of such authenticated copies in State v. Bullis, 196 Iowa 480, 192 N.W. 793; and see State v. Dowden, 137 Iowa 573, 115 N.W. 211, and Code section 622.53, I.C.A.

It is not difficult to determine the admissibility of these authenticated copies. Defendant's major complaint at this point is that he was not sufficiently identified as the same person as the 'William Bolds' and 'William Winfield Bolds' who was convicted in the two Illinois cases. In passing, it should be pointed out that even if it should be held there was insufficient evidence of identification to...