State v. Hephner

• Citation: 161 N.W.2d 714
• Decision Date: 15 October 1968
• Docket Number: No. 53115,53115
• Court: United States State Supreme Court of Iowa
• Parties: STATE of Iowa, Appellee, v. Raymond James HEPHNER, Appellant.

Page 714

161 N.W.2d 714

STATE of Iowa, Appellee, v. Raymond James HEPHNER, Appellant.

No. 53115.

Supreme Court of Iowa.

Oct. 15, 1968.

Donald E. Poyner, Sigourney, for appellant.

Richard C. Turner, Atty. Gen., William A. Claerhout, Asst. Atty. Gen., and Albert F. Goeldner, County Atty., Sigourney, for appellee.

MASON, Justice.

Raymond James Hephner was convicted by a jury of assault with intent to commit murder contrary to section 690.6, Code, 1966, as charged by county attorney's information. After overruling defendant's motion for new trial the court sentenced defendant to the state penitentiary for a term not to exceed 30 years.

Defendant appeals from this final judgment, assigning as errors the overruling of defendant's (1) petition for change of venue, (2) objections to evidence offered by the State in rebuttal, (3) motion for mistrial and (4) motion for new trial.

I. Kenneth Hammes who lives with Elmer Conrad in a farmhouse about 8 miles southeast of Sigourney testified he was awakened about 9 p.m. November 8, 1967, by the south doorbell. He dressed, went to the east door and turned on a light. Defendant and another man identified in the record as 'the kid' came around from the south door, asked to get some gasoline. Hammes got his cap, jacket and key to the gas barrel, told Conrad two men wanted gas and he was going to get it for them.

As Hammes and the two men went to the gas barrel they asked who lived there, if they had awakened any children and how much farming he was doing. He told them Conrad was in the house. After Hammes filled the gas can they said they would need a funnel. The two men followed Hammes into the garage to get a funnel. Hammes testified that when he found the funnel he turned around to find defendant holding a gun in his face and was told, 'Don't move, we've got a gun. * * * We're hot, so we have to have a place to stay. * * * We're going in the house.' The kid said, 'We've already killed a man.'

As the three returned to the house Hammes was hit in the ribs with the gun, ordered to 'open the door, we're going in' and to call Conrad into the kitchen. Hammes told Conrad to get his clothes on and come out. Conrad had seen defendant, his partner and Hammes return from the garage, said he wasn't getting up or coming out for anybody. Defendant again told Hammes to get Conrad out there. When Conrad refused to show himself the three proceeded down a hallway toward his bedroom. When one of the men said, 'We've got a gun', Conrad replied, 'That makes us even, so have I' and brought a previously obtained shotgun down into a lined position on defendant from the doorway. Hammes dropped to the floor, Conrad saw a pistol in defendant's hand, pulled the shotgun trigger but the gun contained no shell and defendant pulled it away. A scuffle between Conrad and defendant's partner followed with defendant hollering, 'Pull that trigger, pull that trigger.' The partner pulled the trigger, sending a bullet through the ceiling.

Mr. Hammes subdued defendant and the partner escaped. The deputy sheriff was called and the pistol turned over to him upon arrival. Defendant was taken into custody.

Trial commenced December 27 with Hammes, Conrad and Keith Bryant, Keokuk County deputy sheriff, testifying for the State. Defendant was the only defense witness.

II. December 14, eight days after the county attorney's information was filed, defendant filed a petition for change of venue setting forth the nature of the prosecution, the court where the action was pending and that he could not receive a fair and impartial trial owing to the excitement and prejudice against him in Keokuk County. The petition alleged belief of the grounds stated in general terms and was verified on information and belief by defendant. It was in substantial compliance with sections 778.2 and 778.6, Code, 1966. Although the petition is supported by identical affidavits of three Keokuk County residents, the affiants are not alleged to be disinterested persons as required by Code, section 778.3. No motion to strike the affidavits for this reason was filed.

The State filed no counter affidavits contradictory to the grounds stated for the change of venue.

Under his first assignment defendant asserts failure to grant the change of venue constituted a denial of due process.

Ordinarily a petition for change of venue in the form prescribed and in conformity to the statute, on its face proper and sufficient, makes a prima facie case, which if uncontroverted entitles the applicant to the change. See State ex rel. Fletcher v. District Court, 213 Iowa 822, 832, 238 N.W. 290, 295, 80 A.L.R. 339, and citations.

The day of the trial the following record was made:

'THE COURT: Let the record show the jury has been admonished and the Court is in recess and counsel for the defense and defendant, Mr. Hephner, are in chambers as well as Mr. Goeldner, County Attorney and Mr. Sloan, his assistant, it's the Court's understanding the defense has motions they desire to present, is that correct, Mr. Gerard?

'MR. GERARD: That's correct, Your Honor.

'THE COURT: Proceed.'

Both defendant's motions to quash the information and to suppress any evidence of material things taken from him as products of illegal search and seizure are set out in the record. They were both overruled. The State's opening statement appears next in the record.

Neither the record nor the trial transcript indicates defendant took any steps to have the court act on his petition for change of venue.

'* * * Statutory authorization of a change of venue is for the benefit of the party applying therefor, and he may abandon or withdraw the application at any time before the making of an order directing the change. An application for a change of venue not acted on must be presumed to have been abandoned.' 22 C.J.S. Criminal Law § 204.

There being no ruling on defendant's application, it must be deemed the abandoned it. See Smith v. Commonwealth, 19 Ky.Law Rep. 1073, 42 S.W. 1138, 1139.

As tending to support our position see Hoever v. Iowa Lutheran Hospital, 252 Iowa 706, 721, 107 N.W.2d 85, 93--94, where in considering a somewhat similar contention as to the court's failure to rule upon objections to, or motions to strike, evidence or statements of counsel was said:

'(I)t was defendant's duty to request or demand such a ruling. No such request or demand was made and the objection or motion might be deemed waived. In re Estate of Coleman, 238 Iowa 768, 770, 28 N.W.2d 500, 502, and citations; Dougherty v. City of Sioux City, 246 Iowa 171, 195--196, 66 N.W.2d 275, 288, and citations; 4 C.J.S. Appeal and Error § 321c ('Generally, before the trial court can be put in error for the admission or rejection of testimony, it must be clearly shown that the attorney who considered himself aggrieved insisted on a ruling and that the court failed or refused to make one, or * * * made a ruling which was erroneous.'); Id., § 321f.'

See also 4 C.J.S. Appeal & Error § 321e, page 1026:

'Although an appellate court will examine the contention presented by a motion pressed in the court below and considered by that court, a motion which, so far as appears from the record, was never decided or ruled on below presents no question for decision in the appellate court.'

Defendant's meticulous attention during trial to preserving his record on other claimed errors is an indication he abandoned his petition for change of venue. The record presents no question for review under this assignment.

III. Defendant makes two contentions under his second assignment. Although he had objected to State's exhibit 4 as the product of an illegal search and seizure and improper rebuttal, only the rebuttal issue is raised on appeal.

Defendant testified on direct examination:

'Q. Now, you have stated that during the fight you saw a pistol. Do you know where that pistol came from? A. At that time I did not.

'Q. You don't know who had it or where it came from? A. The only time I saw the pistol during the fight, Elmer Conrad had it in his right hand, and this was when I saw the pistol, there was nobody's hand on the pistol but Elmer Conrad's.'

Defendant had previously given his version of the incident by describing how he went to Hammes' house to purchase a couple gallons of gasoline when he thought his car was running out of gas; after getting what he estimated were two gallons of gas he asked how much he owed, took a $10 bill from his billfold and said, 'Here, it's worth a couple dollars.' He asserts Hammes put the $10 in his pocket and said, 'That's just right.' Defendant maintains he insisted on some change and followed Hammes to the house to get it. In the house when he heard Conrad's voice, he walked down the hall toward Conrad's room where a gun barrel was shoved in his stomach. A fight over possession of the shotgun resulted.

After defendant rested, Bryant was called in rebuttal and testified regarding evidence found on defendant's person at the farmhouse at time of arrest. Included in the material was a pink paper which was a bill of sale from an Appelton, Wisconsin hardware store for a Ruger semiautomatic .22 pistol with the serial number 451429. It was marked as State's exhibit 4 and the witness testified the description and serial number on the exhibit matched State's exhibit 1, the pistol previously identified by Conrad as the one in defendant's possession November 8 which the deputy took from Conrad that night.

Defendant's objection to this testimony as improper rebuttal was overruled and the exhibit admitted in evidence. After the jury was excused defendant moved for mistrial, asserting the State had been improperly permitted to introduce this evidence in rebuttal. He renewed the objection in motion for new trial.

Defendant argues all testimony about the pistol in his direct examination referred to the time he saw it during the fight, not to a denial he had ever seen the pistol before; interpreting...