State v. Davis
| Decision Date | 08 April 1941 |
| Docket Number | 45336. |
| Citation | 297 N.W. 274,230 Iowa 309 |
| Parties | STATE v. DAVIS et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Woodbury County; A. O. Wakefield, Judge.
Appeal from a conviction for conspiracy. Defendants were jointly indicted and tried, and from a verdict of guilty they appeal.
Affirmed.
C. N Jepson, H. Clifford Harper, and A. H. Bolton, all of Sioux City, for appellants.
John M Rankin, Atty. Gen., Jens Grothe and Horace E. Pike, Asst Attys. Gen., and M. E. Rawlings, Co. Atty., and Tom E. Murray, Asst. Co. Atty., both of Sioux City, for appellee.
The defendants, Perry Davis and Claude Bledsoe, were indicted on a charge of conspiracy. The indictment contained six counts, the first count alleging generally that Davis and Bledsoe, who were members of the detective force of Sioux City, and divers other persons whose names are unknown, did conspire together with intent to demand and accept money from divers persons whose names are unknown, and in return Davis and Bledsoe, and divers other persons whose names are unknown, were to and did permit divers persons to sell narcotic drugs, to operate houses of prostitution, and compound such offenses, and did neglect to arrest or cause to be arrested said divers persons, and were to and did secure money from divers persons by means of threats and by other means, and said Davis and Bledsoe, and divers other persons whose names are unknown, did so do such things so conspired to be done and did not do the acts conspired not to be done. The indictment extends to considerable length, and no count describes any alleged conspirator by name except the two defendants. Count 2 refers to Dan O'Connell as the person from whom money was obtained, and who was to be permitted to pursue his violations of law; count 3 makes the same reference to Don Hoover and Jessie Hoover; count 4 has the same reference to Elizabeth Gonding; count 5 to Alex Kazoe; count 6 to Leona Gallington; and each count, besides the name of the person to be favored, adds " and divers other persons." On motion of defendants at the close of the State's evidence for dismissal of the indictment, such motion was sustained as to count 4 and overruled as to the other counts. The motion was renewed at the close of the evidence, and again overruled. On trial to a jury a verdict of guilty was rendered as to both defendants. Motion for new trial was overruled, and defendants appeal.
Error is assigned to the overruling by the court of the motion of defendants for dismissal of the indictment on the ground that the minutes of the testimony before the indicting grand jury were not attached to and returned with the indictment, and the overruling of such motion renewed again and again throughout the trial of the case. It is not complained that witnesses were examined or attempted to be examined whose testimony was not returned with the indictment, but the reference is to witnesses who were twice called to give their testimony before the grand jury but minutes as to only one examination were returned. We do not think that the defendants can complain of this action. Witnesses are often called before the grand jury whose testimony will be of no value and it would be useless to return the minutes of such unnecessary examination with the indictment. We see no reason why, on a recall of a witness, all the minutes of both examinations need be returned. The question of return of minutes was fully discussed in State v. Martin, 210 Iowa 376, 228 N.W. 1. See that case and cases cited therein. The court did not err in overruling the motion.
Defendants also assign error by reason of misconduct on the part of the bailiff in charge of the jury in communicating with the jury and in advising them that they could not disagree in the instant case. What this assignment assumes as a fact in relation to such misconduct is disputed by the State. The facts, according to the defendants' version, are that the jury were placed in the hands of the bailiff, retired to deliberate on April 10, and returned after approximately 36 hours; that on April 11, 1940, about 3:30 in the afternoon, one of the bailiffs in charge of the jury, on being advised that the jury had disagreed, told the jury that they could not disagree, that they would have to reach a verdict, and that the court would compel them to stay out several days longer. The jury did, in fact, take one vote after this alleged statement, and returned their verdict in about 2 hours thereafter. Some of the jury, and others, made affidavits generally to this effect, but the testimony of other jurors disagreed; and the bailiff also disagreed with defendants' version. Several jurors stated that nothing was said as to how long the jury would have to remain out. The question of misconduct of juries has been before this court a great many times. In the present case, under the conflicting evidence in relation to what was said, and realizing the difficulty of witnesses being able to state just what the substance of oral statements was, we are inclined to think that there was not such misconduct as would influence or affect the verdict in any way. And in a matter of this kind, where the evidence is conflicting, we have held that the ruling on a motion for new trial based on such alleged misconduct was within the discretion of the trial court. In consideration of the specific denial of the alleged use by the bailiff of the language attributed to him, and in view of the conflict of evidence and the statements of various jurors, we are not disposed to disturb the ruling of the court and are persuaded that the court's ruling was correct. It was at least a matter which, under the circumstances, was within the discretion of the trial judge. See State v. Kurtz, 208 Iowa 849, 225 N.W. 847; State v. Siegel, 221 Iowa 429, 264 N.W. 613; State v. Phillips, 212 Iowa 1332, 236 N.W. 104, and cases cited. Such ruling is not ordinarily disturbed on appeal. State v. Reynolds, 201 Iowa 10, 206 N.W. 635; State v. Banks, 227 Iowa 1208, 290 N.W. 534; State v. Umphalbaugh, 209 Iowa 561, 228 N.W. 266; State v. Kurtz, supra.
The defendants assign as error the court's action in submitting by instruction only two forms of verdict. The court said in instruction No. 23:
The form of verdict No. 1 submitted was that the jury find the defendants Davis and Bledsoe guilty of the crime of conspiracy as charged in the indictment; and the second verdict was in the same form except that there would be a finding of not guilty. Defendants claim that the submission of these forms was in violation of section 13922 of the Code of 1939, which provides that upon an indictment against several defendants any one or more may be convicted or acquitted. Defendants cite in support of their claim State v. Elmers, 198 Iowa 1041, 200 N.W. 723, and State v. McClintock, 8 Iowa 203. The McClintock case was a charge of assault and battery by several persons upon several other persons, and of course, charged an offense which, under the evidence, could have been committed by any one or more of the defendants. The Elmers case was a charge of maintaining a liquor nuisance, in which the defendants were jointly indicted. Under the facts of that case the court was in error in not submitting a separate verdict as to each defendant, and this court so held. The charge in the case at bar, however, is that of conspiracy. From the very nature of the offense there must be at least two persons who entered into the conspiracy. There could be no doubt that, if only two persons are indicted and tried, the verdict must be guilty or not guilty as to both, that one could not be guilty unless the other were also guilty. In the case of State v. Martin, 199 Iowa 643, 646, 200 N.W. 213, 215, the court said: " Even though one defendant should formally confess his guilt of the conspiracy * * * If the...
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