State v. Froah

Decision Date19 November 1935
Docket Number43039.
Citation263 N.W. 525,220 Iowa 840
PartiesSTATE v. FROAH.
CourtIowa Supreme Court

Appeal from District Court, Polk County; Russell Jordan, Judge.

Indictment for burglary with aggravation. Jury returned a verdict of guilty against defendant. Motion for new trial overruled. Defendant appeals. Motion to fix attorney's fees overruled. Decision of lower court affirmed.

Ted Sloane and John L. Sloane, both of Des Moines, for appellant.

Edward L. O'Connor, Atty. Gen., Walter F. Maley, Asst. Atty Gen., and Carl A. Burkman, Co. Atty., and Francis J. Kuble Asst. Co. Atty., both of Des Moines, for the State.

PARSONS, Justice.

The defendant in this case was indicted by the grand jury of Polk county for burglary with aggravation, along with three others, and the cause was tried in the district court submitted to the jury, and the jury returned a verdict of " Guilty." Whereupon the defendant was sentenced to be imprisoned for life in the penitentiary at Fort Madison and the case comes up on his appeal.

The abstract is very short, comprising only, from cover to certificate, nineteen pages. The robbery occurred on November 10, 1934, and it was at the home of Mrs. Santo Cimino who lived at 110 Hartford avenue, Des Moines. The property taken in the burglary was a safe in the home, and there was deposited in the safe at that time $863 belonging to Mrs. Cimino, $1,400 that belonged to one Frank Folina, besides some bonds belonging to other parties. One Zugenbuhler, one of the accomplices, was called by the state as a witness, and objection was made to his testifying by reason of the fact that he was not one of the witnesses before the grand jury, and that his name was not indorsed as a witness on the indictment, he having been indicted in the same indictment as the appellant.

The county attorney made out for service a notice in compliance with section 13851 of the Code, and with the notice copies thereof for the defendant, and another party indicted with the defendant in the same indictment. Ted Sloane, the attorney who represents this defendant and who presents this case to this court, was at that time, and has been ever since, the attorney of record for the appealing defendant. No question is made about the sufficiency of the notice, except as to the service thereof. Within the proper time before the trial, and while the defendant was confined in the county jail, the notice was prepared by the county attorney for service on the defendant, it was accepted by Sloane, and he indorsed thereon in his own handwriting: " Due service and copy for each defendant of the above notice is hereby accepted Ted Sloan Attorney for Floyd Froah and Buddy Cheutz." Cheutz and Froah were each named in the indictment as defendants, along with the witness Zugenbuhler. The court overruled the objection when so made, and in so doing said, " In view of the acceptance of service, the court holds that the objections to the testimony of this witness is overruled, (defendant excepts) as well as section 13851, which seems to authorize under certain circumstances the service of notice upon the attorney. You may proceed." To which the defendant took exception. Zugenbuhler then testified as to the occurrence that took place; that he took the other defendants, including Froah, to the place of the burglary, and that Froah took part in the burglary; and that he himself got $460 out of it. Of course, this testimony by an accomplice was not of itself sufficient to corroborate, but Mrs. Cimino, whose house was robbed, and who was present at the time, testified to the presence of Froah, and to his taking part in and assisting in the robbery, and as to one of the robbers having and holding a gun and making threats; and as to the taking of the safe, the amount involved therein, and that it was about 7:30 or 8 o'clock p. m.

At the close of the state's evidence, the defendant by his attorney, the one accepting the service of the notice of Zugenbuhler's testimony, made a motion for a directed verdict on the following propositions: (1) No evidence to sustain necessary elements of the crime charged against the defendant; (2) no evidence to go to the jury connecting this defendant with the crime; (3) no evidence against the defendant except that of an accomplice, and that there is no corroboration of said accomplice as to any of his testimony tending to connect the defendant with the crime charged; (4) that if the jury should find the defendant guilty under the evidence before it, it would be the duty of the court to set the verdict aside. This motion was overruled, to which the defendant excepted. Whereupon the defendant put in his evidence which was mostly confined to proof of an alibi.

It appears that the defendant was employed in or about a beer tavern on Sixth avenue. Amongst the witnesses were persons temporarily residing (to put it lightly) at the county jail. One of them testified he had been convicted of a felony several times; another that he had been convicted of a felony once. At the close of this evidence the defendant then renewed his motion for a directed verdict, which was overruled, and the jury on February 8, 1935, returned a verdict as follows: " We, the jury, find the defendant Floyd Froah, guilty of the crimes of burglary with aggravation, as charged in the indictment." The defendant filed motion for new trial, not set out in the abstract, which motion was on the 15th of February overruled, and the defendant was sentenced for life to the penitentiary at Fort Madison, Iowa. Sloane was at the time of the acceptance of service of notice, on January 13, 1935, and for some time had been, the attorney of record in this case for the defendant, and he has continued to be such ever since and is now prosecuting the appeal. He accepted service of the notice for defendant, with a copy to deliver to the defendant. All the statements about this are made by Sloane; no statement that he did not deliver it. We think it is presumed that he did his duty in this, delivered the notice to his client. We cannot hold otherwise than that this service, accepted as it was by the attorney for the defendant, with copies to be delivered to his client, met every purpose of the statute to bring notice home to the defendant of the intention to use the witness, and hence the district court did right in permitting the witness to testify. To hold otherwise would be to give opportunity to lawyers inclined to trickery in their dealings with the court to mislead officers deliberately with the intention of doing as was done in this case, objecting as objections were made here, and thus put off the evil days for their clients. We cannot sanction such a rule. There is no more excuse for an attorney to fail to perform his duty in a criminal case than in any other case. The ethics of the profession require that the lawyer dealing with the courts, and in dealing with the officers charged with the enforcement of the law, should be scrupulously careful to observe the ethics of...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT