State v. Burch

• Decision Date: 06 March 1923
• Docket Number: No. 34882.,34882.
• Citation: 195 Iowa 427,192 N.W. 287
• Parties: STATE v. BURCH.
• Court: Iowa Supreme Court

195 Iowa 427

192 N.W. 287

STATE

v.BURCH.

No. 34882.

Supreme Court of Iowa.

March 6, 1923.

Appeal from District Court, Madison County; L. N. Hays, Judge.

The defendant was convicted of larceny of hogs, and appeals. Reversed.A. W. & Phil R. Wilkinson and W. S. Cooper, all of Winterset, for appellant.

Ben J. Gibson, Atty. Gen., and Leo C. Percival, Co. Atty., of Winterset, for the State.

PRESTON, C. J.

The indictment charges in substance that Roscoe Burch and Walter Debord did steal six red hogs and one black hog of the value of $127.50, the property of Tom Jackson. The jury found the the value of the hogs as alleged. The judgment was that defendant Burch be confined in the reformatory at Anamosa not exceeding five years. Defendant, Burch, pleaded not guilty and was put on trial separately.

Defendant is a young farmer with a small family, living about three-fourths of a mile from Jackson's. The defendant also had a farm some 18 miles from his residence, upon which Debord was his tenant. This farm was near Booneville. Defendant's residence was a few miles from Winterset. Debord repeatedly stated to several persons that the defendant, Burch, had nothing to do with the transaction. Defendant's brother went on Debord's bond for a time, but later withdrew therefrom, and Debord then said that if he had to go to the penitentiary he would take another ______ along with him. Thereafter he took the witness stand against this defendant. These matters last referred to are all admitted by Debord on cross-examination. After Debord took the stolen hogs to his home, he took them to Booneville two or three days thereafter and sold them and received the pay therefor. Defendant had directed Debord to take the hogs which defendant claims were his own, and different hogs, to Valley Junction.

Some 15 or 16 errors and points are relied upon for a reversal. Appellant seems to concede that, as to some of these, if taken separately would not justify a reversal, but they do contend that when taken all together the defendant has not had a fair trial. We are inclined to hold, and do hold, that under the entire record the defendant did not have a fair trial. We have reached the conclusion that the case ought to be reversed. This being so, it will not be necessary to notice in detail all these matters, since some of them will not be likely to occur on a retrial. This has reference more particularly to the ruling on defendant's motion for continuance, the alleged misconduct in argument of the county attorney, and the like. Counsel for appellant urges that the evidence was not sufficient to sustain the verdict, and that Debord, the alleged accomplice, who testified for the state, was not sufficiently corroborated, and that the court erred in overruling motion for directed verdict; that there was error in the instructions and in the admission of evidence.

[1] 1. The indictment was returned October 10, 1921. The trial began December 13th thereafter, on which day the defendant filed his application for continuance. Mr. Parsons, of Des Moines, was employed immediately upon the indictment of defendant, as his principal attorney. Mr. Cooper was employed locally to assist. On Saturday December 10th, Mr. Cooper received word from Mr. Parson's secretary that Mr. Parsons had been called to South Carolina in the trial of a very important case in the federal court, and which had been pending for a long time. Mr. Cooper was unable to get into communication with defendant to inform him of the situation until December 12th, and immediately sent to Des Moines to Mr. Parson's office to try to find some papers which he had in connection with the case. Mr. Parsons was the only attorney who had prepared the case for trial. Mr. Cooper did not expect to take charge of the defense. No question is made but that Mr. Parsons was called away as stated. Judge Wilkinson was secured at a late hour to assist. It is but fair to say that, a week or two before, the case had been postponed a few days to accommodate Mr. Parsons. The trial court was of opinion that, since Mr. Cooper and Judge Wilkinson were both lawyers of ability and experience, the defendant could have a fair trial. The trial court might well have continued the case, but it had a discretion in the matter and we are not prepared to say that the case should be reversed for this alone.

2. The larceny is alleged to have occurred on a Saturday night June 18, 1921. Debord testifies that he came from his home near Booneville on Friday night and was at the defendant's home most of the day on Saturday and with this defendant. Five or six witnesses testify that he was not at defendant's home on Saturday at all. Other witnesses testify as to Debord's whereabouts at another place on that date. There may be other impeaching circumstances in addition to this and his contradictory statements in regard to defendant, Burch, having nothing to do with the transaction. In this situation the trial court instructed the jury, in substance, that defendant was a competent witness, and had availed himself of the privilege of testifying, but that the jury should consider his interest, and to give his testimony such weight as the jury might think it entitled to, and no more. No instruction was given by the court in regard to the impeachment of Debord. Defendant did not ask such an instruction. The contention is that this situation tended to disparage the testimony of the defendant and in comparison with that of Debord. The trial court doubtless would have given such an instruction had it been requested. It might well have been given without a request.

3. Certain hogs were loaded at or near defendant's place on Saturday night and taken by Debord to his residence in a truck. Debord had stated to others that the hogs so taken were not the stolen hogs but were hogs which belonged to Burch, and which were being taken to the other farm. The defendant claims that they were his own hogs. He, his wife, and two or three others accompanied Debord part of the way and helped Debord up a hill. Some six or seven witnesses testify that the hogs so taken from defendant's place were all black hogs, except one white, and perhaps one red one, which concededly had been on the defendant's Booneville farm. There is a sharp conflict between a number of witnesses as to the color of the hogs that were so taken. Early Sunday morning, after Debord and the others had parted, four men living in Des Moines had been fishing nearby, and noticed the hogs in Debord's truck. These men say that the hogs were black hogs and one red hog. These four men were not impeached, except that they had been fishing. In referring to them in the closing argument, the county attorney said:

“There is one thing about their case that showed they were good soldiers; that is, when the four fishermen went on the stand and recited their story like they had been told it the day before. One of the bunch had spent five years learning how to be a good soldier, and he got them in a room and drilled them and drilled them, and then got on the witness stand and testified like a mannikin. * * * If you are going to turn men loose, allowing crooks to come out and prove an alibi, Des Moines is full of that kind of crime, the officers of the law are helpless if you allow that kind of testimony to acquit men. They tried that over in Guthrie Center last term of court and let a murderer loose.”

Upon objection to this kind of argument, the court said that it might be expunged from the record. The court did not direct the jury to not consider the remarks, nor was there any instruction given on the subject later. To say the least, this comes dangerously near to being reversible error.

4. As a part of the motion for new trial, defendant filed affidavits as to statements alleged to have been made by one of the jurors in a crowd of threshers, which tended to show that the juror had deceived the defendant in his answers as to his qualifications, and which show that the juror was not a competent juror. The substance of the affidavits is that the matter as to the guilt or innocence of defendant and Debord was under discussion, and that the juror in question said: “Of course, they did it, we all know what kind of fellows they are, they are guilty and they should suffer the consequences.” There is no denial of these affidavits. In the state's amended abstract the examination of this juror on his voire dire is set out, wherein he said that he knew Burch and had heard about this case; that he had formed an opinion, but had really not given the matter much thought; the statements made by people he had talked with tallied with what he had read in the paper, from which he had formed an opinion, and still had it; would require some evidence to remove; the opinion would exist until evidence was introduced to show it was not true, and would have the opinion until there was evidence enough to remove it; didn't believe such an opinion would influence him on the trial, and that he could lay it entirely aside. In response to questions by the court, the juror said that he thought he could go into trial, hear the evidence and instructions, and, without any prejudice or bias he might have, try the case and render verdict according to the evidence and without any reference to the opinion. The juror was challenged for cause by defendant. Overruled. This juror was called after defendant had exhausted four peremptory challenges. Thereafter defendant exercised all his peremptory challenges, and this juror sat on the trial. We do not understand appellant to claim that this ruling of itself is reversible error. The contention is that it is a circumstance, with others, tending to show that defendant did not have a fair trial. Since there is to be a reversal on other grounds, and a new jury will be called, it is unnecessary to pursue this...