State v. Galvan

• Decision Date: 10 November 1970
• Docket Number: No. 53428,53428
• Citation: 181 N.W.2d 147
• Parties: STATE of Iowa, Appellee, v. Phillip (N.M.N.) GALVAN, Appellant.
• Court: Iowa Supreme Court

Page 147

181 N.W.2d 147

STATE of Iowa, Appellee, v. Phillip (N.M.N.) GALVAN, Appellant.

No. 53428.

Supreme Court of Iowa.

Nov. 10, 1970.

John P. Roehrick, of Des Moines, for appellant.

Richard C. Turner, Atty. Gen., G. Douglas Essy, Asst. Atty. Gen., and Ray A. Fenton, Polk County Atty., Des Moines, for appellee.

LARSON, Justice.

By indictment defendant was charged with the crime of murder as defined in sections 690.1 and 690.2, Code of Iowa 1966. Upon trial to a jury he was found guilty of murder in the second degree as provided in section 690.3 of the Code and, pursuant to judgment, was sentenced to be imprisoned for a period of 35 years in the Men's Reformatory at Anamosa, Iowa. He appeals. We affirm.

Appellant assigns three propositions of error relied upon for reversal. We shall attempt to consider them in the order assigned, but first we turn to the record for a brief statement of the relevant facts and circumstances.

The defendant Phillip Galvan was one of many persons, young and old, present at a party at the home of the decedent Ivan Omer Black in Des Moines, Iowa. Dancing, drinking, quarreling and fighting resulted. There was testimony that at approximately 9:45 P.M. an altercation broke out in the living room of the house between defendant's father, Celestino Galvan, and defendant's cousin, Raul Rubin Galvan, that carried from the living room out into the front yard. Decedent and defendant, as well as others at the party, were advised of the difficulty and arrived at the scene shortly thereafter. In an effort to dissuade those intent on violence there was extensive argument, some shoving and pushing, and several blows were struck. In this fracas the decedent Black sustained serious knife wounds in his chest.

There was testimony that defendant Phillip Galvan attacked Black after Black had hit his father Celestino, that Phillip had a knife and stabbed Black several times, that he cut his own sister when she attempted to restrain him, and that Celestino took the knife away from Phillip and put it in his car before he departed. Police were called and Black was taken to the hospital where he died. Phillip had left the scene before police arrived but was apprehended later when he came to the police station to visit his father, who had been arrested for speeding while on his way home.

Defendant took the stand in his own behalf and denied that he stabbed Black or that the knife, Exhibit 'A', was his knife, but his father Celestino testified that the knife Exhibit 'A' was defendant's knife, and Frances Hocking testified she heard Margaret, defendant's sister, ask defendant to put the knife away for 'You already stabbed Uncle Ivan.'

It also appeared that Celestino, arrested while driving his family home, was later charged with being intoxicated. The police officers testified that a knife was found in his possession and that he later identified it as the one he took from his son after Black was stabbed. Thereafter defendant was charged with Black's murder and, pursuant to arraignment, pleaded not guilty.

I. For his first assignment of error appellant contends that upon the record as a whole he did not receive a fair trial and he was prejudiced by the evidence admitted, that pursuant to section 793.18, 1966 Code of Iowa, the court should review the entire record as a matter of grace without regard to technical errors.

We give due consideration to this claim as we will not allow a finding of guilt stand where there is an absence of competent proof of any essential element of the crime charged. State v. Stodola, 257 Iowa 863, 865, 134 N.W.2d 920, 921; State v. Myers, 253 Iowa 271, 274, 111 N.W.2d 660, 662. A conviction notwithstanding such absence of proof amounts to denial of a fair trial. State v. Hill, 258 Iowa 932, 935, 140 N.W.2d 731, 733; State v. Poffenbarger, 247 Iowa 552, 554, 74 N.W.2d 585, 586. However, the statutory duty of the Supreme Court under section 793.18 of the Code to review the record in a criminal case without regard to technical errors or defects does not apply where proper or timely objections were not made. State v. Kramer, 252 Iowa 916, 109 N.W.2d 18.

Furthermore, on defendant's appeal from criminal conviction based on a jury verdict challenging sufficiency of evidence to sustain the verdict, we view the evidence in the light most favorable to the State and accept as established all reasonable inferences tending to support the action of the jury. It is necessary to consider only the supporting evidence whether contradicted or not. State v. Cooper, Iowa, 180 N.W.2d 424 (filed October 13, 1970); State v. Brown, Iowa, 172 N.W.2d 152, 153, and citations.

The verdict of the jury is binding upon us unless it is without substantial support in the record or is clearly against the weight of the evidence. State v. Everett, Iowa, 157 N.W.2d 144, 146; State v. Frink, 255 Iowa 59, 64, 120 N.W.2d 432, 435.

Nevertheless, in extreme cases where the record itself shows the defendant has not had a fair trial, we will not hesitate to grant a new trial. We have said, 'It is true that we have, on occasion and when the record showed that a fair trial had not been had, proceeded under Section 793.18, supra, to reverse. * * * But these were extreme cases, in each of which the record showed amply that the defendant had not had a fair trial. Generally we think that when a defendant is represented by competent counsel, and for reasons of strategy or otherwise questions or objections are not presented to the trial court, there is grave danger they may be considered on appeal to have been waived.' State v. Kramer, supra, 252 Iowa 916, 919, 109 N.W.2d 18, 20, and citations.

We are satisfied here that the verdict is supported by ample substantial evidence in the record, that it is not clearly against the weight thereof, and that unless the evidence admitted amounted to reversible error, defendant did receive a fair trial.

II. Appellant's contention that he was prejudiced by evidence wrongfully admitted has no merit. Specifically, he complains of the evidence relating to (1) the altercation outside defendant's presence, (2) the acceptance into evidence of the knife, State's Exhibit 'A', and (3) the admission of evidence of flight. The State contends that no proper objections were timely made as to this evidence and that no exceptions to it were preserved. As we understand it, appellant's counsel in this appeal, who was not defendant's counsel in the trial, concedes that contention but asks our review of these issues as a matter of grace. Under the circumstances appearing here we decline to do so. See State v. Kramer, supra, 252 Iowa 916, 109 N.W.2d 18; State v. Slater, 261 Iowa 554, 153 N.W.2d 702.

Even if we were to consider these alleged errors as a matter of grace because the charge against the defendant is a serious one, and if we did extend him leniency by considering these assigned errors on their merits as though they had been properly saved below, such leniency on our part would not result in a reversal on the basis of appellant's assignment of error in Division I of his brief.

He first contends that the court erred in receiving into evidence statements of third parties not involved in an altercation when it was not shown that the defendant was present or involved in said altercation. One of the guests, Frances Hocking, testified that about 9:45 an argument ensued between Celestino and Rubin in the living room and continued to the front door and into the front yard, that when Celestino went for a gun she ran to inform the host Black and the defendant who were in the back yard of the premises, and that when Black arrived and tried to calm the participants Celestino struck him. When Black struck back, the defendant, who is Celestino's son, joined the fray and the stabbing occurred. This evidence was clearly admissible. The time, place, circumstances, and the participating parties were material and relevant matters and had probative force in establishing the intention of the appellant. It was so interwoven with other relevant evidence to form a continuous transaction.

In State v. Holoubek, 246 Iowa 109, 113, 66 N.W.2d 861, 863, we held, 'The rule in such cases appears to be that where the acts are all so closely related in point of time and place, and so intimately associated with each other that they form a continuous transaction, the whole transaction may be shown, and what immediately preceded and what immediately followed the act complained of, for the purpose of showing the scienter or quo animo of the party charged.' Also see State v. Robinson 170 Iowa 267, 152 N.W. 590; State v. Hickman, 195 Iowa 765, 193 N.W. 21.

The introduction of testimony in regard to earlier aspects of the altercation, we hold, served to show the commencement of the physical violence in the living room which led to the stabbing of the decedent in the front yard of the premises, and the circumstance of that beginning was admissible here even though not in the presence of defendant. Appellant's authority, which deals with silence as consent to...