State v. Dunne

• Decision Date: 28 July 1944
• Docket Number: 46335.
• Parties: STATE v. DUNNE.
• Court: Iowa Supreme Court

15 N.W.2d 296

234 Iowa 1185

STATE v. DUNNE.

No. 46335.

Supreme Court of Iowa

July 28, 1944

Frank D. Gilloon and John K. Chalmers, both of Dubuque, for appellant.

John M. Rankin, Atty. Gen., Wm. F. McFarlin, Asst. Atty. Gen Paul Ahlers, Co. Atty., of Des Moines, R. S. Milner, of Cedar Rapids, L. C. Schroeder, of Maquoketa, and Stipp, Perry Bannister & Carpenter, Sp. Asst. Co. Attys., of Des Moines, for appellee.

GARFIELD, Justice.

Frank James 84 years old, lived alone in a house on an acreage two miles northeast of Maquoketa. About 9 p. m. on May 2, 1942, after he had retired, James heard a rap at his door which he proceeded to answer. After he reached up to unhook the screen door, someone stuck a gun into the screen. James tried to grab the gun but it discharged into his hand. He then went out onto the porch in pursuit of his assailant who apparently became frightened. James saw two men in the dark and went back into the house to get his shotgun. As he was entering the house a second shot was fired which did not strike him. The state contends the shots were fired by defendant, a farmer living in Jackson county, and that John Steiner defendant's hired hand, participated in the crime. James had $660 in cash on his person at the time.

I. Defendant's first and third assignments of error challenge certain instructions to the jury. Defendant is not entitled to have these complaints considered here. The only exception taken below to the instructions now complained of in the third assignment was, 'Defendant excepts to the instructions given.' No grounds were stated in support of the exception. A more specific exception was taken to instruction 10, complained of in the first assignment here. However, defendant does not now challenge instruction 10 upon any of the grounds stated in that exception.

Section 11495, Code 1939, provides: 'Any party may take and file exceptions to the instructions * * *, but all such exceptions shall specify * * * the grounds of such exceptions.' This statute is applicable to criminal as well as civil cases. Code, § 13876; State v. Boston, Iowa, 11 N.W.2d 407, 410, and cases cited. The general exception was not a compliance with section 11495. It is equally plain, under these same authorities, that defendant is not entitled to urge here complaints against instruction 10 not presented below by way of proper exception. See also State v. Ireland, 192 Iowa 489, 494, 185 N.W. 35.

II. The second assignment of error challenges as an invasion of the province of the jury this portion of instruction 17: 'There is no dispute upon the proposition that an assault was made by someone, armed with a pistol or revolver, on the person of Frank James, or, that he was shot, in Jackson County, Iowa, on the night of May 2, 1942.' Particular complaint is made of the words italicized by us. In resistance to this assignment, the state relies on this claimed admission made by the defense in its opening statement to the jury: 'As has been stated by the county attorney upon reading the indictment, the defendant has pleaded not guilty. The defense is not contesting the fact or arguing with anybody about whether the crime was committed out on the James place on the night in question because undoubtedly the old gentleman was shot by somebody, but the defense will contend that he was not there at that time, did not participate in the shooting, and knows nothing whatsoever as to what occurred out there that night except in the same way that you and I have learned of this unfortunate affair.'

The challenge to instruction 17 must be sustained.

We have held in several criminal cases that it is not error for the court in its instructions to assume as true an evidential fact which both parties admit and as to which there is no dispute. State v. Chumley, 229 Iowa 579, 586, 294 N.W. 764, and cases cited; State v. Evans, 229 Iowa 932, 936, 295 N.W. 433, 435; State v. Billberg, 229 Iowa 1208, 1215, 296 N.W. 396, 400. Among such decisions are homicide cases where the defendant admitted the killing but claimed it was the result of accident, intoxication or self defense. State v. Graves, 192 Iowa 623, 185 N.W. 78; State v. Mitchell, 130 Iowa 697, 701, 107 N.W. 804; State v. Archer, 73 Iowa 320, 35 N.W. 241. Such cases present some analogy to a civil case in which there is a plea in the nature of confession and avoidance.

But the above cases are not applicable here. Defendant made no admission that Mr. James was assaulted by someone armed with a pistol or revolver. The opening statement for him contained no such admission. The indictment made no reference to a pistol or revolver. Nor can it be said this is a matter as to which there was no dispute.

The instruction was highly prejudicial. It was an important if not a vital element of the state's theory that the assault was committed by someone armed with a pistol or revolver. The state contends and offered evidence to prove that on the afternoon before the day of the assault, defendant took a loaded, rusty revolver from the Posch tavern at Hurstville, two miles from Maquoketa; that he showed a rusty revolver to the accomplice Steiner the morning of the assault and said he intended to rob James. The state contends this stolen revolver was used in the assault upon James. This is the basis for its evidence tending to show defendant's theft of the Posch revolver. A finding that the assault was committed with a gun which was not a pistol or revolver would materially weaken the state's case.

The state also seeks to justify instruction 17 on the theory that it was conclusively shown the assault was committed by someone armed with a pistol or revolver. Assuming without deciding that in the absence of an admission by a defendant it is possible for the prosecution in a criminal case to prove a controverted fact so conclusively that the court may tell the jury it has been fully established, clearly this is not such a case. A definite description of the gun used in the shooting does not appear. Steiner's testimony is silent as to any description of the gun used in the assault. He does not say it was the same gun which defendant showed him earlier in the day nor even that it was a revolver. The state itself characterizes Mr. James' description of the gun as 'very uncertain and entirely unsatisfactory.' Mr. James testified on direct examination:

'Q. Describe that gun the best you can remember it. A. Well, it was somewhere, I should judge about that long; it stuck in.

'Q. State whether it appeared to be a revolver or shotgun or rifle, or what? A. Well, it was something like a rifle, but it was kind of long for a revolver, I should judge. I can't say.

'Q. Did it have a long barrel? A. Pretty fair length.

'Q. How long would you say the barrel was? A. I couldn't tell you.

'Q. Could you indicate with your hands? A. I should judge it was about that long (indicating with hands); I couldn't tell exactly.

'Q. If I hand you Exhibit 2 (a photograph measuring 8X9 13/16 inches) and put the narrow side of the exhibit between your hands, does that about fill them? A. I couldn't tell just exactly, but I seen it sticking in the door.

'Q. Now, laying Exhibit 4 over your hands, are both edges of the Exhibit about on top of your hands, or not? A. Well, by looking I couldn't tell exactly.

'Q. Where are the edges of the paper with reference to your hands now? A. Well, it was a little, I should think, longer, from what I seen.

'Q. You think that the wider,--this is the wider part of the paper; of course, that is a little longer? A. Yes, near the short part, I should judge, as near as I can tell.'

In addition to the testimony of James and Steiner, there is testimony that on the night of the assault a bullet was found in the side of the James house and another on the porch floor. Also that both bullets were the same manufacture, 38 caliber and type as the bullets from which Posch testified he loaded his revolver. The witness Krolick testified, in effect, defendant impliedly admitted to him that he committed the assault with a gun he had gotten at Hurstville on the night before. Defendant denied this testimony. He denied he ever had a revolver or any gun except a shotgun.

Even in a civil case, where proof need be only by a preponderance of the evidence rather than beyond a reasonable doubt, we have held that in the absence of an admission by the adverse party, it is not often proper to instruct that a party having the burden of proof on any question has established his claim as a matter of law. Low v. Ford Hopkins Company, 231 Iowa 251, 254, 1 N.W.2d 95, 97; Maland v. Tesdall, 232 Iowa 959, 963, 5 N.W.2d 327, 329. This is more especially true in a criminal case.

This defendant, though he may be ever so guilty, has the right under our constitution and statutes to have fact questions determined by a jury. Iowa Const. Art. I, § 10 ; Code, §§ 13804, 13864. Instruction 17 was an abridgement of that right and an unwarranted invasion of the province of the jury. In State v. Hubbard, 218 Iowa 239, 241, 250 N.W. 891, 253 N.W. 834, we said:

'That it is error to assume facts as in existence or proven which are in controversy and disputed in the record, is too clear to warrant discussion. Especially is this true in a criminal case. Under our Constitution and statutes, juries are the triers of fact, either in civil or criminal cases, and the usurpation or assumption of this duty by the court is error and must not be sanctioned. * * *

'The only variance from this rule has occurred in cases in which both parties admit certain evidential facts to be true.'

See also State v. Bige, 112 Iowa 433, 434, 84 N.W. 518; State v Carter, 112 Iowa 15, 20, 83 N.W. 715; State v. Austin, 109 Iowa 118, 120, 121, 80 N.W. 303; ...