State v. Gilmore

Citation181 N.W.2d 145
Decision Date10 November 1970
Docket NumberNo. 53056,53056
PartiesSTATE of Iowa, Appellee, v. Edward Gene GILMORE, Appellant.
CourtUnited States State Supreme Court of Iowa

Anthony M. Critelli, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Max A. Gors, Asst. Atty. Gen., Ray Fenton, County Atty., Des Moines, for appellee.

MASON, Justice.

Defendant Edward Gene Gilmore was indicted, tried and convicted by a jury of assault with intent to commit murder contrary to section 690.6, Code, 1966. Following his conviction, Gilmore was sentenced by the Polk district court to imprisonment in the state penitentiary at Fort Madison not to exceed 30 years.

Defendant appeals from this judgment. His four assignments of error relied on for reversal challenge the court's refusal to give defendant's requested instructions.

The incident giving rise to the criminal charge occurred November 25, 1967 in a Des Moines tavern. David Thacker, his brother Glen and Ned Hill arrived at the tavern about 9 p.m. They circulated among the other patrons, visiting with acquaintances, drinking alcoholic beverages and either engaging in or watching a pool game. Each seems to have gone his own way.

Neither the Thacker boys nor Hill knew defendant who had been in the tavern for some time when they arrived. About 30 minutes after their arrival while David was sitting in a booth having a drink with Richard Dennis and John Leib whom he knew, Gilmore came and sat with them. Apparently Gilmore was acquainted with Dennis. After a short time Gilmore left the booth and his whereabouts for the next 15 or 20 minutes is not clear from the record. Evidently David, Dennis and Leib had left their table and were standing near the front door watching a pool game when David saw Gilmore coming from the corner of the bar with a gun pointed toward the three of them. Thus armed Gilmore ordered everyone from the tavern. Some took his suggestion. As defendant came closer, David attempted to wrestle the gun from him and was shot in the hand. Glen, returning from the restroom, went to the aid of his brother and in the confusion which followed was shot in the head by defendant.

Any factual controversy is unimportant in the view we take of appellant's appeal.

Defendant elected not to offer any evidence at the close of the State's case. At this point he filed written request for instructions which were refused. Defendant made no objections to the final draft of the court's instructions before they were read and submitted to the jury and failed to take any exceptions to the court's refusal to give his request. He did not file a motion for a new trial and makes no contention here that the court misdirected the jury in a material matter of law in the instructions as given.

Defendant asserts his assignments of error in this state of the record.

I. The State contends that by reason of defendant's failure to specifically object to the court's refusal to give his request nothing is presented for review by defendant's assignments.

It relies on this statement in State v. Schmidt, 259 Iowa 972, 979, 145 N.W.2d 631, 635--636, certiorari denied, 386 U.S. 965, 87 S.Ct. 1046, 18 L.Ed.2d 115:

'Section 780.35, Code, * * * (1966), provides: 'Instructions: The rules relating to the instruction of juries in civil cases shall be applicable to the trial of criminal prosecutions.'

'Rule 196, Rules of Civil Procedure, as pertinent here, provides: 'Instructions. The court shall instruct the jury as to the law applicable to all material issues in the case and such instructions shall be in writing, in consecutively numbered paragraphs, and shall be read to the jury without comment or explanation; * * *. At the close of the evidence, or such prior time as the court may reasonably fix, any party may file written requests that the jury...

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19 cases
  • Thornberry v. State Bd. of Regents
    • United States
    • United States State Supreme Court of Iowa
    • 9 Abril 1971
    ...denial of their request. Resultantly this assignment is entitled to no consideration on appeal. Ia.R.Civ.P. 196; State v. Gilmore, 181 N.W.2d 145, 146--147 (Iowa); Reeder v. Iowa State Highway Commission, 166 N.W.2d 839, 843 (Iowa); Nizzi v. Laverty Sprayers, Inc., 259 Iowa 112, 117, 143 N.......
  • State v. Hraha, 54786
    • United States
    • United States State Supreme Court of Iowa
    • 14 Enero 1972 State v. Franklin, 163 N.W.2d 437, 440--442, (Iowa 1968); State v. Brown, 172 N.W.2d 152, 157--160, (Iowa 1969); and State v. Gilmore, 181 N.W.2d 145, (Iowa 1970). Defendant's assertion the instructions under attack were incorrect statements of law applicable to the facts, fails to quali......
  • State v. Overmann, 1--56582
    • United States
    • United States State Supreme Court of Iowa
    • 28 Agosto 1974
    ...787 (Iowa 1973); State v. Hraha, 193 N.W.2d 484, 486 (Iowa 1972); State v. Brandt, 182 N.W.2d 916, 918 (Iowa 1971); State v. Gilmore, 181 N.W.2d 145, 147 (Iowa 1970); State v. Brown, 172 N.W.2d 152, 157--160 (Iowa 1969); State v. Franklin, 163 N.W.2d 437, 441 (Iowa 1968). See also 22 Drake ......
  • State v. Buchanan, 55573
    • United States
    • United States State Supreme Court of Iowa
    • 23 Mayo 1973
    ...But defendant did not except to the court's failure to give his instruction and therefore cannot successfully assert error. State v. Gilmore, 181 N.W.2d 145 (Iowa). Second, prior to instructing the jury, the court presented its instructions in final form to both counsel and gave them an opp......
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