State v. Ferguson
| Decision Date | 14 February 1939 |
| Docket Number | 44475. |
| Citation | 283 N.W. 917,226 Iowa 361 |
| Parties | STATE v. FERGUSON. |
| Court | Iowa Supreme Court |
Appeal from District Court, Jasper County; P. J. Siegers, Judge.
Appellant was convicted upon an information charging him with the theft of certain cattle.
Affirmed.
McCoy & McCoy, of Oskaloosa, and Marion R. Hammer, Jr., of Newton for appellant.
John H. Mitchell, Atty. Gen., and Harold J. Fleck, Co. Atty., and James A. Devitt, Sp. Counsel, both of Oskaloosa, for the State.
Comfort & Comfort, Ralph N. Lynch, C. S. Missildine, James P. Irish Charles W. Bowers, and Oral S. Swift, all of Des Moines Cullison & Hurley, of Harlan, Gerald O. Blake, of Jewell Swift & Swift, of Marengo, and H. E. DeReus, of Knoxville, amici curiae.
This is the third occasion upon which this appellant has invoked the jurisdiction of this court herein. For our prior decisions, see State v. Ferguson, 222 Iowa 1148, 270 N.W. 874; Ferguson v. Bechly, 277 N.W. 755.The facts developed at the trial herein are so similar to those developed on the first appeal that it is only necessary to briefly review them herein.
On July 5, 1935, the county attorney's information was filed, charging appellant with stealing eleven head of cattle belonging to one Vernie Braden, in violation of Section 13015 of the Code. Appellant was tried and convicted in the District Court of Mahaska County. On appeal to this court, the conviction was reversed, solely because of errors in excluding certain testimony and refusing an instruction, it being determined that the evidence of the state, if believed was abundantly sufficient to sustain a conviction. See State v. Ferguson, supra.
Procedendo was sent down from this court on January 25, 1937. The case was assigned for trial on February 17, 1937, for March 1, 1937. Ten days later appellant objected to trial because of the pendency of his petition for rehearing in this court, and also moved for a change of venue. On March 1, 1937, when the cause came on for trial, the plea to the jurisdiction, because of the pendency of the petition for rehearing, was overruled, but the motion for change of venue was sustained, and the cause was transferred to Jasper County for trial.
On April 9, 1937, the procedendo from this court was recalled. On May 8, 1937, the petition for rehearing was overruled, and a second procedendo issued from this court May 12, 1937. On September 20, 1937, the case was assigned for trial in the Jasper District Court. Appellant then filed a motion to dismiss, contending he had been denied a speedy trial as provided by Section 14024 of the Code. The motion was overruled. Appellant applied for and secured a writ of certiorari to review such ruling. The writ was annulled by this court on February 15, 1938. See Ferguson v. Bechly, supra.
The cause again came on for trial in Jasper District Court on March 5, 1938, at which time appellant filed a second motion to dismiss, again asserting that he had been denied a speedy trial as guaranteed him by the constitution (article 1, § 10) and as provided by Sections 14024 and 14025 of the Code. Resistance was made on the ground that the position taken by this court in the proceedings in certiorari were conclusive against the motion. The state also filed a motion to strike appellant's motion, asserting that the question had been fully determined by the opinion of this court in the certiorari proceedings. The trial court ruled that, while appellant was prosecuting the writ of certiorari, the state was not in a position to proceed with trial until that question was decided by this court and sustained the state's motion to strike appellant's motion to dismiss. The cause proceeded to trial, resulting in appellant's conviction. From such conviction, appeal was perfected to this court, asserting nine assignments of error.
Appellant's first assignment of error challenges the correctness of the ruling of the trial court, sustaining the motion to strike appellant's motion to dismiss. Careful examination of the opinion of this court in the certiorari proceedings, Ferguson v. Bechly, supra, convinces us that the position there taken by us was conclusive upon the trial court and decisive of appellant's first assignment of error. There is no merit therein.
In the course of the trial, appellant did not take the witness stand in his own behalf. In the opening argument by the state, the county attorney commented on that fact. Counsel for appellant objected on the ground that it was error for the county attorney to make such comment and to convict appellant on such an argument would be contrary to and in violation of Section 9 of Article 1 of the Constitution of Iowa, which provides that no person shall be deprived of life, liberty or property without due process of law, and contrary to Section 13890 of the Code, which provides that defendants in all criminal proceedings shall be competent witnesses in their own behalf, but cannot be called as witnesses by the state. Appellant's objection was overruled. Such ruling is made the basis for appellant's second assignment of error.
In determining whether or not the provisions of Section 13890 of the Code, to the effect that a defendant in a criminal proceeding shall be a competent witness in his own behalf but cannot be called as a witness by the state, forbids the county attorney commenting upon the fact that the defendant has not seen fit to avail himself of the privilege of testifying in his own behalf, it is necessary to briefly consider the legislation in this state on the right of a defendant to testify.
Originally, a defendant in a criminal case was not competent to testify in his own behalf. Section 2390 of the Code of 1851 provided that no person who had a direct, certain, legal interest in the outcome of a suit was a competent witness unless called by the opposite party. Said section of the Code of 1851 was modified by Section 3980 of the Revision of 1860, which provided that a party to an action was both competent and compellable to give evidence, except as otherwise provided. Section 3981 of the Revision of 1860 provided that nothing contained in the preceding section should render a defendant in a criminal proceeding competent or compellable to give evidence, either for or against himself. The same provision was contained in Section 4556 of the Code of 1873. The statutory provision, rendering a defendant in a criminal case incompetent to testify in his own behalf, was recognized and enforced by this court. State v. Laffer, 38 Iowa 422; State v. Bixby, 39 Iowa 465.With the defendant in a criminal case declared to be incompetent to testify in his own behalf, obviously his failure to testify would not be a matter upon which the county attorney could comment.
Section 1 of Chapter 168 of the Acts of the 17th G.A., which is codified as Section 5484 of the Code of 1897, provided that defendants in a criminal proceeding should be competent witnesses in their own behalf, but could not be called by the state, and, should a defendant not elect to become a witness, such fact should not have any weight against him on the trial, and, should the county attorney comment on such fact, it would be error in and of itself sufficient to entitle the defendant to a new trial. The fact, that the failure to testify should not have any weight against the defendant on the trial, in and of itself, was sufficient to prohibit comment thereon by the county attorney. Wilson v. U.S., 149 U.S. 60, 13 S.Ct. 765, 37 L.Ed. 650.
In the Code of 1924, the first clause of Section 5484 of the Code of 1897, to the effect that defendants in criminal cases shall be competent witnesses in their own behalf, but cannot be called as witnesses by the state, was made a separate section, to wit: Section 13890, and this is still the law of this state, being Section 13890 of the Code of 1935. The second clause of Section 5484 of the Code of 1897 to the effect that, should a defendant not elect to become a witness, that fact shall not have any weight against him, nor be the subject of comment by the county attorney, appears as Section 13891 of the Codes of 1924 and 1927, but was repealed by Chapter 269 of the Acts of the 43rd Gen.Assem., in 1929.
In the case of State v. Stennett, 220 Iowa 388, 260 N.W. 732, 736, this court was called upon to construe the effect of the action of the 43rd G.A., c. 269, in repealing Section 13891 of the Code. We there state:
Appellant contends that the interpretation this court makes of the legislative history on this subject was dictum because of the fact that the remarks of the county attorney were not made of record. Conceding, for the purposes of this case, that the above language of ...
To continue reading
Request your trial