State v. Conroy

• Decision Date: 06 February 1907
• Citation: 133 Iowa 195,110 N.W. 437
• Parties: STATE v. CONROY.
• Court: Iowa Supreme Court

133 Iowa 195

110 N.W. 437

STATE

v.CONROY.

Supreme Court of Iowa.

Feb. 6, 1907.

Appeal from District Court, Scott County; A. P. Barker, Judge.

The defendant was convicted of burglary and appeals. Affirmed.Salinger, Scott and Theophilus, for appellant.

H. W. Byers, Atty. Gen., and C. W. Lyon, Asst. Atty. Gen., for the State.

WEAVER, C. J.

Upon a former appeal in this case a judgment of conviction was reversed on account of error in the admission of testimony. State v. Conroy, 126 Iowa, 472, 102 N. W. 417. A retrial having resulted in conviction, the defendant again appeals.

1. A motion to dismiss the appeal has been submitted with the case, and requires first consideration. It is shown by the record that, after the verdict was returned, the defendant, being present in court for that purpose, was interrogated in the usual manner whether he had anything to say why the judgment should not be pronounced, and his counsel responded thereto saying: “On behalf of the defendant, who is present in court, we desire to waive all objections to testimony taken during the trial, and all exceptions to rulings of the court, and now submit to the judgment of the court.” Thereupon judgment was entered by which defendant was ordered confined in the state penitentiary for a term of three years--a period materially less than was adjudged against him on the former trial. On this showing the state contends that defendant's right of appeal has been waived, and that the case should be summarily disposed of upon motion. The right of appeal being statutory only, we do not care at this time to hold that it cannot be waived, but it is sufficient for present purposes to say that, in the absence of an express consent, the court will be slow to find a waiver of this very important right as a mere matter of inference. Clark v. Gibson, Morris, 328. We have also held that a defendant's appeal in a criminal case will not be affirmed on motion. State v. Bahne, 79 Iowa, 472, 44 N. W. 711. Such is the necessary effect of the statute which requires this court to examine the record without regard to technical errors and defects and render such judgments as the law demands. Code, § 5462. The intention of the statute seems to be that, as a general rule at least, an appeal in a criminal case shall be heard and decided upon its merits. We find no reason in the case now before us for regarding it an exception to that rule and the motion is therefore denied.

2. But the hearing of an appeal upon its merits does not require or imply that the court shall ignore all rules of law and practice, or that a defendant who wishes to get the full benefit of an adverse ruling or holding by the trial court is under no obligation to make the usual and proper record of the alleged error. Generally speaking, there is no difference in this respect between appeals in criminal and civil cases. Speaking to this point, we have said: “Certainly a criminal defendant may waive error on appeal. He does so in every instance where an exception is not taken below.” State v. Schwab, 112 Iowa, 666, 84 N. W. 944. On the the former appeal of the present case we said: “A defendant in a criminal case may waive objections to incompetent testimony, and, when he does so by his silence or otherwise, we will not reverse because it has been admitted. Indeed, the rule has been so frequently affirmed that citations in its support are...