State v. Burgess, 46743.
| Decision Date | 10 January 1946 |
| Docket Number | No. 46743.,46743. |
| Parties | STATE v. BURGESS. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; Joseph E. Meyer, Judge.
Defendant was indicted, charged with the crime of robbery with aggravation. Upon trial he was found guilty. A motion for new trial, exceptions to instructions and other kindred motions, were overruled. He was thereafter sentenced to the state penitentiary for a term of years. He has appealed.
Reversed.
T. H. Haynes, of Des Moines, for appellant.
John M. Rankin, Atty. Gen., Charles H. Scholz, Asst. Atty. Gen., and Vernon R. Seeburger, Co. Atty., and S. L. Harvey, Asst. Co. Atty., both of Des Moines, for appellee.
The defendant was indicted for the crime of robbery with aggravation as defined by sections 13038 and 13039 of the 1939 Code of Iowa. He entered a plea of not guilty and upon trial the jury returned a verdict of guilty of the crime charged. A motion for new trial, exceptions to instructions, motion in arrest of judgment, and for judgment notwithstanding the verdict were filed on behalf of defendant. These were overruled by the trial court. The defendant thereafter was sentenced for a term of 25 years in the penitentiary at Fort Madison. He has appealed from the overruling of the several motions presented and from the judgment and sentence entered.
The appellant presents as one ground for reversal the claimed error of the trial court in denying a new trial on the ground that newly discovered evidence had been obtained by appellant consisting of the testimony of a witness that appellant was not present at the scene of the crime in Des Moines at the time of its commission. The abstract of record summarizes the testimony of this new witness which was given at the time the motion for new trial was presented. The abstract shows that appellant testified at the trial that he boarded a train in Des Moines at approximately an hour before the alleged hold-up took place. At the hearing upon the motion for new trial this new witness, who was the extra conductor on the train that appellant said he (appellant) boarded in Des Moines, testified: ‘It was his first run as an extra conductor on said train and that he remembered seeing appellant on the train and that the appellant was the first person from whom he collected tickets * * * that he distinctly remembered collecting the ticket (from appellant) because he was the first one whom he collected the ticket from and that appellant was asleep and that he had a hard time awakening him * * * that (later) he went to the Polk County Jail where the appellant was incarcerated and immediately picked him out as being the fellow that was on the train on the night stated above from a group of five other persons.’
The trial court overruled the motion for new trial because he felt the new evidence was ‘at the most, cumulative’ and reasonable diligence could have produced this testimony at the trial.
The record shows the defense was alibi. Appellant was the only witness who testified at the trial that he was on the train at the time the state's witnesses testified the crime was committed. Clearly the evidence of the conductor of the train, placing the appellant on the train at the time of the commission of the crime, was not cumulative. It would be the only evidence of a...
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State v. Compiano
...the statutory ground of whether there was a fair and impartial trial. State v. Sims, 241 Iowa 641, 648, 40 N.W.2d 463; State v. Burgess, 237 Iowa 162, 164, 21 N.W.2d 309. Ordinarily, on motions for new trials based on a claim of newly discovered evidence, one convicted of a crime should not......