State v. Dangelo

Decision Date06 March 1918
Docket Number31980
Citation166 N.W. 587,182 Iowa 1253
PartiesSTATE OF IOWA, Appellee, v. FRANK DANGELO, Appellant
CourtIowa Supreme Court

Appeal from Appanoose District Court.--FRANCIS M. HUNTER, Judge.

THE accused, Frank Dangelo, with others, was indicted for murder in the first degree. He was first put on trial, and convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary for life. He appeals.


Wilson & Smith, for appellant.

H. M Havner, Attorney General, and F. C. Davidson, Assistant Attorney General, for appellee.




Northwest of, but not far from, Centerville was a ball park, and adjacent thereto a hall, at which dances, attended by Americans and Italians, frequently occurred. In the evening of June 1, 1916, Pearl Traxler, then operating an automobile livery at Cincinnati, James Richmond, an employee, Clarence and Silas Thomas, and John Stevens, reached this hall about 9 o'clock. The defendant, Charles Rove, Roy Nofio, John Tolimelio, and Lena Hinkle, who are charged in the indictment with the murder of Traxler, Eva Ressler, and May Mosley, were then in attendance. The dance closed at about 11:30 o'clock, and these parties moved toward Rove's automobile, beyond the gate, some going over and others through, as Traxler and those with him drove up, and requested Eva Ressler to open the gate, so that their automobile could pass through. She was unable to do so, and an altercation ensued, which terminated in the killing of Traxler. As Lena Hinkle left the hall, Traxler had asked her to go home with him, and when she refused, and walked on with defendant, remarked that he supposed she preferred "the damned Dago;" and there was evidence that, as Traxler stood, or was moving toward defendant beyond the gate, the latter, on whose shoulder rested Lena Hinkle's hand, deliberately shot him. The evidence adduced by the State tended strongly so to prove; though Lena Hinkle swore that she saw Rove do the shooting, and she was somewhat corroborated.

I. Several errors have been assigned, and of these we may as well first consider the contention that, owing to the inexperience and lack of familiarity with the practice, in this state, of counsel who appeared for defendant, he was not accorded a fair and impartial trial. The record demonstrates that B. P. Barasa, of Chicago, Illinois, who was leading attorney for the defense, was not familiar with Iowa practice, and that he was assisted by a local attorney somewhat inexperienced, but that they were employed by the defendant, and not appointed by the court, as was the attorney defending in State v. Barr, 123 Iowa 139, 98 N.W. 595. Moreover, they interposed objections for the most part appropriate, though omitting some that might well have been made. Rarely, if ever, will a new trial be granted owing to negligence or incompetence of the attorney of the party applying therefor in a civil action. Jones v. Leech, 46 Iowa 186; State v. Benge, 61 Iowa 658, 17 N.W. 100; Albert Hass Lbr. Co. v. Gibson, 172 Ala. 111 (Ann. Cas. 1913 D, 497, 54 So. 994, and cases collected in note). In criminal cases, the rule is adhered to less strictly, especially where the attorney defending has been appointed by the court. Where an attorney has been employed by the accused, and appears for him at the trial, the latter acts and speaks through the attorney. He is, at it were, his alter ego. Presumably, he is the kind of an advocate he believes will best present such defense as there may be, to the court and jury. The court is powerless to force a more diligent or capable attorney on him, for he may decline the assistance of anyone. State v. Moore, 121 Mo. 514 (42 Am. St. 542, 26 S.W. 345).

Having selected counsel to his own liking, no fraud having been perpetrated therein, we know of no reason why he should not, with the possible advantages of such choice, suffer the accompanying inconveniences or detriment. See cases in note in Ann. Cas. 1913 D, supra; Darby v. State, 79 Ga. 63 (3 S.E. 663). We do not say that the rights of the accused may not be so flagrantly disregarded by counsel of his own choosing, and, as a consequence, justice so manifestly miscarry, as that a new trial should be ordered. See State v. Jones, 12 Mo.App. 93, where a new trial was awarded, and which seems an extreme case; but it even was overruled in State v. Dreher, 137 Mo. 11 (38 S.W. 567).

Nothing in the record in the case at bar indicates want of fidelity on the part of either of the attorneys acting in defendant's behalf. They appear to have had a fair comprehension of the issues and of the rules of evidence, and, though somewhat prolix, they appear to have lodged proper objections, save in one or two instances, when these would ordinarily be raised. Objections are interposed when they might as well have been omitted, and some are omitted when it would seem they should have been interposed, in the most skillfully conducted trials. It is often a matter of doubt whether tenable objections are advantageous. Perfection in the methods adopted by attorneys cannot well be demanded; and, even though the young lawyers did not present the defendant's cause as well as some others might have done, this furnishes no ground for new trial, especially in view of the strong probability that he could not have been successfully defended by anyone he might have chosen. The court rightly denied a new trial on this ground.

II. Nor do we find that remarks made by the court were prejudicial to defendant. (a) In explaining to the jury his order that they be kept together during the trial, his honor expressed the opinion that it would be an abuse of discretion not to do so, and added that "It is not that we haven't any faith in you, but something might happen that would cause us to set the verdict aside and try the case over again. I know that it discommodes everybody, but it is a matter of great importance." He then advised them at length that everything would be done for their comfort, and that they should take exercise. Of course, a new trial can be granted only in event of a conviction; but that is a matter concerning which jurors were not likely to have had information. Even if they had, the suggestion could not have been construed to be an intimation of his opinion as to the guilt or innocence of the accused, only as indicative of a possible course in event of conviction. Following the above, the court proceeded:

"Here is the defendant, who does not speak our language,--at least not very well,--possibly laboring under some suspicion as to what is going on. We have not only got to try the case in the manner that the law says we shall, but try it right, and render justice; and therefore we must do it in a way to convince them that we have given them the very best attention that is possible, in a legal and in a proper manner,--at least, we must not do it in a way that would give them any ground for suspicion, no matter how honest we are, or how hard we try to perform our duty. You will appreciate that your decision in this case is one of grave importance. It is as important as mine is. I have work to perform during all the case; but in the end, your work will be of more importance than the counsel at the trial table, and mine."

This was tantamount to saying that defendant must not only be accorded a fair trial, but one which had all the appearances of such, even to commending itself to the defendant and those indicted with him. All of this might as well have been omitted. The court owed no apology to the jury for its order that the jury be kept together throughout the trial. But an explanation that, in causes of the importance of those in which murder is charged, such orders are usual, and in the interest of a fair trial, was not out of order. Undoubtedly, the jury so construed the remarks of his honor, and we are satisfied that they could not well have taken what he said concerning apparent fairness, in view of defendant's situation and inability to express himself well in English, as in any manner indicative of his opinion as to his guilt or innocence. We are of opinion that no prejudice resulted from what was said.

(b) Counsel for defendant objected to Traxler's widow's sitting in the court room and crying in the presence of the jury. The court, in overruling the objection, stated that she was sitting immediately back of State's counsel, and shed tears during the opening statement for the State, but did not cry audibly; and ruled this without prejudice. Manifestly, her conduct was not such as to have warranted her exclusion from the court room or condemnation, and the ruling has our approval.

(c) In cross-examining James Richmond, counsel asked him if he had testified as stated at the coroner's inquest, and after several questions were put and answered, the court remarked:

"It occurs to me that some of this is immaterial, as he has testified here in truth that he did not know who fired the shot. He did not see the gun in anybody's hands. Mr. Barasa: The only reason I brought this question up was this: he intimated at one time--sort of an intimation--that it was Frank, and I wanted to get the straight of it. I am satisfied now. The Court: You could ask him direct about it, instead of asking him if he did not testify so before some other court. Mr. Barasa: The point was, there was a contradiction from this testimony and the other. The Court: The last three or four questions, there is no contradiction at all in his testimony at that time. If you want to lay the foundation for impeachment, that is proper; but it is immaterial what he testified to at the other time, except for the purpose of impeachment."


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