State v. Canalle

• Decision Date: 13 November 1928
• Docket Number: 38993
• Citation: 221 N.W. 847,206 Iowa 1169
• Parties: STATE OF IOWA, Appellee, v. EASTER CANALLE, Appellant
• Court: Iowa Supreme Court

221 N.W. 847

206 Iowa 1169

STATE OF IOWA, Appellee, v. EASTER CANALLE, Appellant

No. 38993

Supreme Court of Iowa, Des Moines

November 13, 1928

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

The grand jury of Appanoose County, Iowa, on September 7, 1927 returned an indictment against Easter Canalle and Chester Rhodes for the crime of transporting intoxicating liquor contrary to law. The defendant Rhodes entered his plea of guilty. The defendant Canalle entered his plea of not guilty and on the 16th day of September, 1927, trial was had resulting in a verdict of guilty. Thereafter, the defendant filed his motion for new trial, and exceptions to the instructions. The trial court overruled the same, and entered judgment, imposing a fine of $ 250 and costs of prosecution including a county attorney's fee of $ 50; and upon default of payment of fine and costs, defendant was to be committed to the county jail of Appanoose County not exceeding one day for each 3 1/3 dollars of such fine and costs. The defendant Canalle appeals.

Affirmed.

C. H. Elgin, for appellant.

John Fletcher, Attorney-general, and Neill Garrett, Assistant Attorney-general, for appellee.

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

OPINION

DE GRAFF, J.

Divers errors are relied upon by the appellant for a reversal, but, for the sake of brevity, these errors may be classified under three propositions: (1) Prejudicial statements elicited by the prosecuting attorney on the direct examination of witnesses Sheriff Gaughenbaugh and Constable Seath, who made the arrest of the defendant; (2) insufficiency of the evidence to sustain the verdict; and (3) error in certain instructions given by the trial court to the jury.

I. We first turn to the challenged testimony of the State's witness Sheriff Gaughenbaugh. The record is in part as follows:

"Q. Are you acquainted with the defendant Canalle? A. Yes, sir. Q. How long have you known him? A. The last four years, I expect,--possibly longer. Q. Sheriff, what business is Canalle engaged in here [Centerville]? A. Liquor business. (Defendant's attorney: That is improper, and a mere conclusion, an opinion of the witness, and prejudicial. The court: Objection sustained.) The witness then answered that the defendant was interested in a pool hall. Q. Who has been interested with him in that business? (Objected to as immaterial and secondary, not the best evidence. A. Slim Campbell. The court: Objection sustained. Defendant's attorney: Can't you wait? The court: You will wait, Mr. Sheriff. Objections sustained.) Q. Now in that place of business, what is there? (Same objections. Defendant's attorney: I thought we were going to try a transporting of liquor case, instead of somebody running a pool hall. Question restated. Same objections, and all of them,--immaterial and collateral to any issue here. The court: Objections sustained.) Q. What is the equipment or stock? (Same objections. The court: Objections sustained.) Q. Who works there in that place of business with Canalle? (Same objections. The court: Objections sustained.) Q. Does Chester Rhodes work in that same place? (Same objections. The court: Sustained.)"

A complaint of similar nature is based on the direct examination of William Seath, the constable of the township where the alleged crime was committed. He testified that he was acquainted with the defendant Canalle, and had known him for at least ten years. He was then asked if he knew the occupation of the defendant at the time charged, to wit, May 7, 1927. Objection was made as incompetent, immaterial, and calling for the conclusion of the witness. The court ruled the objection by stating: "He may answer, if he knows." Having stated that he did know, he was then asked: "What is it?" Similar objections were made, and overruled. Whereupon counsel for the defendant added, by way of objection: "Misconduct on the part of the county attorney, prejudicial, and done for the purpose of prejudice." The court then said: "If the witness knows of his own knowledge, he may answer." A. "Well, running the pool hall, and bootlegging." Defendant's counsel then moved to strike, and the court, in ruling, said:

"That last part may go out. That last remark may go out. It is improper, and the jury will not consider it for any purpose."

At this point, the defendant requested the court to discharge the jury and continue the case, on account of the prejudicial misconduct on the part of the county attorney and his witnesses, "especially this witness and the witness Gaughenbaugh." "The court: I will say this to the jury. Defendant's counsel: That won't do it, your honor. The court: I am saying this to the jury: As I told you before, the remark of Sheriff Gaughenbaugh that was stricken out, you will not consider for any purpose. This last remark of this witness I have stricken out, and you will not consider it for any purpose. When I say that, that means you will eliminate it from your minds. That remark was improper. I don't want it to occur again. Motion overruled. Exceptions."

It is the specific contention of the appellant in this court that the evidence heretofore set out was "prearranged evidence, concocted by the county attorney and his star officer witnesses," and that this evidence "tended to and had doubtless been instilled into the minds of the jury, which was not corrected by the rulings and the admonitions of the trial court." There is nothing in the record which discloses any prearrangement between the county attorney and the "star witnesses." In fact, the evidence is to the contrary. Upon the cross-examination of Constable Seath, he was asked if he and the sheriff and the county attorney had not "framed" to put in improper evidence in this case. He answered emphatically in the negative, and that he was not trying to do anything by unfair or foul means; that he did not testify by reason of any interest in the case; that he did not know that the testimony in question was improper; and that he had never talked with the county attorney about this case, and did not know what questions would be asked of him on the witness stand.

At the time that Sheriff Gaughenbaugh took the witness stand, he was asked, without objection, whether he was acquainted with the defendant Canalle, and how long he had known him, and what Canalle's business was in Centerville. It may not be said that either counsel or court could have anticipated that the sheriff, in answer to the last question, would reply, "Liquor business." Furthermore, the answer, when made, was immediately stricken. The same is true as to the improper answer of the witness Seath. The trial court was quite specific in its direction to the jury that the challenged evidence as to both witnesses in this particular should not be considered "for any purpose." The record is silent whether or not the court, in the instructions given to the jury, referred further to this matter; but even in the absence of further instruction, the jury understood the meaning and intent of the oral instruction that the testimony "was not to be considered by them in reaching a verdict." State v. Foster, 136 Iowa 527, 114 N.W. 36.

In the case of State v. Lyons, 202 Iowa 1195, 211 N.W. 702, the trial court in the first instance overruled the motion to strike certain testimony, but later announced that the motion would be sustained, and directed the jury to give no consideration whatever to such testimony. In that case, as here, the appellant contended that, notwithstanding the fact that the testimony was unequivocally and specifically withdrawn from the consideration of the jury, the error in its admission was not cured. The proposition was held untenable. True, there are cases wherein we have been constrained to say that evidence improperly admitted was of such toxic character that the error was not cured by striking same and giving proper admonitions to the jury. State v. Poston, 199 Iowa 1073, 203 N.W. 257; State v. Paden, 199 Iowa 383, 202 N.W. 105; Quillen v. Lessenger, 190 Iowa 939, 181 N.W. 8; Hood v. Chicago & N.W. R. Co., 95 Iowa 331, 64 N.W. 261. We do not consider the instant case to be within the class of the foregoing cases and others cited by appellant in his brief.

Appellant also seriously questions one other item of evidence which has to do with searching a car and the finding of liquor by Sheriff Gaughenbaugh in the forenoon of the day that the defendant Canalle and his companion Rhodes were arrested. It appears from the testimony of the sheriff that the first time he saw the defendant on the day of his arrest was when Canalle and Rhodes left Canalle's pool hall and entered Rhodes's car, which was parked in the street, directly north and in front of the pool hall. The sheriff and Seath got in the sheriff's car, and followed the Rhodes car. As the sheriff's car turned off Primary No. 3, two cars "pulled out" of what is called the Raven road or lane. One went west, and one went east. The defendant Canalle at that time was driving the Rhodes car, coming west. The sheriff's car followed the car going east, and known in this record as the Riles car. In the examination of the sheriff, the question was asked: "And did you stop and search that car?" Objections were made, and the trial court inquired: "How do you claim that is material? How long do you claim it was, before the alleged act?" The county attorney replied: "It was the same day, not very long before. The sheriff can tell you. I can't." The objection was overruled, and the sheriff answered that a search was made. To the question as to what was found, the sheriff replied, over overruled objections: "Nine pints of alcohol in a sack--a paper sack."

It is apparent that the trial court...