State v. Collins, 48560
| Decision Date | 08 March 1955 |
| Docket Number | No. 48560,48560 |
| Citation | 69 N.W.2d 31,246 Iowa 989 |
| Parties | STATE of Iowa, Appellee, v. Donald Guy COLLINS, Appellant. |
| Court | Iowa Supreme Court |
Verne Lawyer and Don Hise, Des Moines, for appellant.
Leo Hoegh, Atty. Gen., Raphael R. R. Dvorak, Asst. Atty. Gen., Clyde E. Herring, County Attorney, Polk County, and James A. Lorentzen, Asst. County Atty., Polk County, Des Moines, for appellee.
On June 26, 1953, shortly after 9 o'clock P.M., defendant was stopped and arrested while driving his automobile in Des Moines, Iowa. Thereafter, being charged under section 321.281 with operating a motor vehicle while intoxicated, he pleaded not guilty. He was convicted and appeals from the resulting judgment.
The appeal presents but one claimed error,--improper cross-examination of defendant, eliciting the fact that he had once been in Eldora Training School for Boys. We need not set out any details of the evidence bearing on his alleged criminal conduct.
The cross-examiner first elicited that defendant was born in Dallas Center in 1922 and left there when he went into service in 1942. After some examination bearing on his contention that he was not intoxicated when arrested but suffering from a physical attack by some unknown assailant the prosecutor commenced to question him as to where he had lived and whether he had been 'away from home.' Two pages of the record are devoted to this part of the cross-examination. The witness said he had been 'in the Dakotas for awhile with a cousin of mine,' had visited his 'sister in Arkansas, Pine Bluff,' etc.
At one point the cross-examiner replied to an objection as to immateriality: 'For the purpose of examination of the credibility of the witness.'
Finally the witness was asked point blank: 'You don't remember any place in particular you were in 1940 other than visiting at your sister's and maybe in the Dakotas?' Objection was urged which the court overruled, saying 'Ordinarily the credibility can be gone into.' The witness then answered: 'I was in Eldora Training School for Boys.'
Prompt motion was made to strike the answer and the court was asked to admonish the jury to disregard it. The court said: 'I assume that the County Attorney knew exactly what the answer was going to be' and at once recessed the case. After recess the court, not in the presence of the jury, announced: 'I will entertain a motion for mistrial.' After argument, however, the defense motion for mistrial was overruled.
I. The question presented is a narrow but extremely troublesome one. Code section 622.17, Iowa Code 1954, I.C.A., provides a witness may be interrogated as to his provious conviction of a felony. That statute has no bearing here.
Section 781.13, Iowa Code 1954, I.C.A., is more in point. It permits cross-examination of a defendant ('when [he] testifies in his own behalf') but warns that 'the State shall be strictly confined therein to the matters testified to in the examination in chief.'
The sole purpose of the cross-examination expressed by the prosecuting attorney here was to test the credibility of the defendant as a witness. It clearly was not to contradict or disprove anything he had testified to on direct examination. The record does not show that he testified on his examination in chief to anything as to his past history except:
The rest of his testimony on direct examination concerned the events preceding and leading up to his arrest: He then tells of the visit of himself and wife at the Mattix home that evening. 'I had nothing to drink with the Mattix and left there sometime after 7:30 to go see Gene Fees. * * * I met Mr. Fees and I drank three bottles of beer and left. * * * Previous to that I had had nothing to drink.
'The next thing that I really remember I was stopped on East 9th by the police officers.'
The rest of his testimony in chief gives his explanation of the presence of beer bottles in his car and something of his physical and mental condition since serving in the Pacific.
The only possible legitimate purpose for eliciting on cross-examination the fact of his residence at Eldora was to suggest to the jury a reason (in addition to his obvious interest in the outcome of the trial) for disbelieving defendant's testimony in chief--in other words, to question his credibility as a witness. But unfortunately, back of that was the possibility of discrediting him as a defendant and making his conviction more probable. Such a possibility when a defendant becomes a witness was doubtless the reason for Code section 781.13, supra. See State v. Yarham, 206 Iowa 833, 837, 838, 221 N.W. 493.
Defendant was born in 1922. His 'residence' in the Training School was in 1940, thirteen years before trial of the instant case. He was then approximately eighteen years old. The only explanation of his being there is given in his redirect examination:
No instruction was given or asked concerning this testimony elicited on cross-examination of defendant. The Record as it stands does not indicate any serious state of dependency or neglect under section 232.2, Iowa Code 1954, I.C.A., or any delinquency under Code section 232.3, as the reason or purpose of his commitment. Undoubtedly a boy may be sent to the Training School under circumstances which, if understood, reflect no discredit but only misfortune. Nevertheless we cannot close our eyes to the general belief, which attaches some stigma to the commitment.
II. The state cites State v. Wasson, 126 Iowa 320, 101 N.W. 1125, 1126, in which case the defendant, charged with robbery, on cross-examination was asked questions as to his former residence and occupation 'which elicited information from which it might be inferred that he had been an inmate of the reform school at Eldora.' The opinion held that 'while it was not competent to show that fact by direct testimony, the state had the right to cross-examine the witness on both subjects (former residence and occupation) although it might tend to disgrace and discredit him', citing 'State v. Pugsley, 75 Iowa 742, 38 N.W. 498.'
Nothing appears as to the length of time that had elapsed since the 'inferred' commitment or as to the reason for it. We are left to 'infer' it was sufficiently recent and of such a nature as to make it material and relevant to the question of the defendant's credibility as a witness.
The Pugsley case cited shows the cross-examination complained of there referred to an existing jail imprisonment of the witness (not the defendant) awaiting trial on an indictment for larceny. It was properly held there that the fact elicited did bear on the credibility of the witness. No question of remoteness was involved in either case.
The State cites numerous cases announcing unquestioned general principles as to cross-examination of witnesses to test their memory or impeach their credibility. We have no quarrel with the propositions they announce. But they are not helpful to us here.
Nor are the cases cited by defendant from other jurisdictions decisive. Henley v. State, 81 Tex.Cr.R. 221, 195 S.W. 197, held it error to show by probation officers that a witness had been convicted as an incorrigible child. No question of cross-examination of the defendant on trial was involved.
In Witt v. State, 123 Neb. 799, 244 N.W. 395, the Nebraska Supreme Court held irrelevant testimony that two of the state's witnesses had been committed to the state girls' training school. Again no question of cross-examination of defendant was involved.
In Daxanbekler v. People, 93 Ill.App. 553, the witness was asked directly on cross-examination, 'Were you ever in the reform school in Iowa?' The Appellate Court upheld the trial court in sustaining objection to the question: 'It is only conviction of an infamous crime which can be shown for the purpose of affecting the credibility of a witness.'
We are mindful that the trial court has a considerable discretion in passing on the materiality and propriety of cross-examination designed to test the memory and credibility of witnesses. But in a criminal case where the witness is the defendant on trial, our statute (Code section 781.13) already cited provides (what probably would be the rule anyway) that the State shall be strictly confined to the matters testified to in the...
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...a mistrial. Consequently there is no such error attributable to the court here as is found in the recently-decided case of State v. Collins, Iowa, 69 N.W.2d 31, which is strongly relied upon by defendant for The next question listed related to defendant's profession and his property: 'Did y......
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State v. Kimball
...minds of the jury. We are slow to hold matters calculated to arouse prejudice non-prejudicial in a criminal case. State v. Collins (1955), 246 Iowa 989, 996, 69 N.W.2d 31, 35. We believe defendant was denied a fair trial by the trial court's pretrial remarks and must reverse his conviction ......
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