State v. Boston

• Citation: 14 N.W.2d 676,234 Iowa 1047
• Decision Date: 06 June 1944
• Docket Number: 46484.
• Parties: STATE v. BOSTON.
• Court: United States State Supreme Court of Iowa

14 N.W.2d 676

234 Iowa 1047

STATE v. BOSTON.

No. 46484.

Supreme Court of Iowa

June 6, 1944

Henry H. Griffiths, of Des Moines, for appellant.

John M. Rankin, Atty. Gen., and Francis J. Kuble, Co. Atty., of Des Moines, for appellee.

MANTZ, Justice.

Hughes Boston was indicted for first degree murder in Polk County, Iowa and upon trial was convicted of manslaughter and the maximum sentence was imposed. At that time the defendant made a written application for a bench parole. This was denied. Upon appeal to this court his conviction was unanimously upheld. State v. Boston, 11 N.W.2d 407, 411. However, a majority of this court held that the trial court abused its discretion in refusing to pass upon the application for parole. On this phase of the appeal the action of the lower court was reversed and the cause remanded with instructions to the trial court to consider and determine said application on its merits. Following the mandate of this court, the trial court set the application down for hearing on January 12, 1944. At the hearing evidence was offered and received following which a bench parole was denied. The defendant appealed and we find ourselves confronted with the question relating to a denial of such application.

I. In its opinion this court set forth matters connected with the power of the trial court to grant or withhold paroles; also stated that in the absence of a record it would be presumed that there was a good reason for the action of the court. We quote from the opinion: "Here, however, the reason for the court's action clearly appears of record. We think here there was an abuse of discretion in the court's refusal to consider defendant's application because 'in all his experience on the bench he had never allowed a parole."'

Following remand, the trial court set down for hearing the application for a bench parole and caused notice to be given. When the matter came up for hearing appellant moved that same be transferred to some other judge of that district, said motion being based for the most part on the fact that the trial judge had already expressed an opinion that no parole should be granted. The motion to transfer was overruled. At the hearing the record of the original trial was introduced and various witnesses testified regarding the appellant-his history, the circumstances of the commission of the crime and his character and reputation. The matter was argued by counsel and was submitted, and on January 19 1944, the trial court filed in writing a ruling denying the application for bench parole. In said ruling the trial court dealt in detail with the proceedings of the former trial and gave a history of the case, referring to the matters brought out in the hearing and setting forth his reasons for denying the parole. This ruling of the court clearly shows a full and complete hearing, with evidence introduced, arguments of counsel, and all matters considered. This record shows that the lower court fully and completely complied with the mandate of this court as set out in the opinion filed in the case. This having been done, disposes of the principal matter to be considered on this appeal. However, as appellant has argued at length on various claimed errors of the trial court, we will consider them briefly.

II. The appellant complains of various errors committed by the trial court-the refusal of the court to transfer the hearing of the application to some other judge; the attitude of the court as evidenced by an express statement of that official that under the record the crime committed was first degree murder instead of manslaughter as found by the jury; and in the failure of the court to obey the mandate of this court to consider and determine the application on its merits. We will discuss these claimed errors in the order above indicated.

Just before the hearing on the application appellant made a motion to transfer the hearing to some other judge of the district urging that the statute contemplated a hearing before any judge of the district; also that a private request for such change had been made and refused; and further that the court had decided in advance and had expressed opposition to the granting of a parole.

We think there is no merit to the claim that the court erred in refusing to transfer the application to some other judge. We know of no statute authorizing a change of judges under the method pursued. There was no showing of prejudice.

The authority of the court to suspend sentences and grant paroles is purely statutory and is found in Sec. 3800, Code of 1939, which is as follows:

"Parole by court. The trial court before which a person has been convicted of any crime except treason, murder, rape, robbery, arson, second or subsequent violation of any provision of title VI, or of the laws amendatory thereof, may, by record entry, suspend the sentence and parole said person during good behavior:

"1. If said person has not previously been convicted of a felony.

"2. If said person is shown to be free from venereal disease.

"3. If said person, if an adult and able to labor, has obtained apparently permanent employment for a reasonable time."

The statute contemplates the application for parole should ordinarily be heard by the judge who tried the case. The very first words of that section, "the trial court before which a person has been convicted ***", can have no other meaning. While the statute uses the words "trial court" still under the ordinary rules of construction this can but mean "trial judge" when so required by the subject matter. It seems hardly necessary to suggest that by "trial court" was meant the judge who presided, as that official would have the benefit of the knowledge and information received at the trial. Eller v. Paul Revere Ins. Co., 230 Iowa 1255, 300 N.W. 535; In re Hale's Estate, 231 Iowa 1018, 2 N.W.2d 775; 14 Am.Jur. p. 248. There was no error by the lower court in refusing to transfer the matter to some other judge.

III. Appellant urges that the court erred in taking into consideration in passing upon his application for parole, the belief of the court that the appellant was guilty of murder in the first degree instead of the crime of manslaughter as found by the jury. In effect, appellant claims that the trial court could not have taken into consideration the belief that appellant had committed a higher crime than the one for which he was convicted. The suggestion is made that all evidence in excess of that indicating manslaughter is ruled out of consideration and further that the court should be limited to what was shown under the application.

We think it would be a strange rule which would thus limit or restrict the matters which the court might consider in passing upon an application for a suspended sentence.

While seeking to restrict the matters which the court might consider, the...