State v. Horsey, 53232

Citation180 N.W.2d 459
Decision Date13 October 1970
Docket NumberNo. 53232,53232
PartiesSTATE of Iowa, Appellee, v. Raymond H. HORSEY, Appellant.
CourtUnited States State Supreme Court of Iowa

Joseph L. Phelan, Fort Madison, for appellant.

Richard C. Turner, Atty. Gen., and James W. Hughes, Asst. Atty. Gen., for appellee.

LeGRAND, Justice.

This matter was before us earlier when we dismissed defendant's appeal because notice thereof was not filed as provided in section 793.4, Code of Iowa, 1966. We held this to be jurisdictional under the authority of our prior decisions, including Blanchard v. Bennett, 167 N.W.2d 612.

Subsequently the United States Circuit Court of Appeals for the Eighth Circuit held our denial of Blanchard's appeal under circumstances similar to those existing here deprived him of his constitutional rights under section 1, Amendment 14, to the U.S. Constitution. The three-judge federal court unanimously ordered that Blanchard be permitted to perfect his appeal. See Blanchard v. Brewer, 429 F.2d 89, decided July 21, 1970.

While we are not bound by the decision in Blanchard v. Brewer, supra, we nevertheless feel defendant Horsey should not be required to seek help from the federal courts while we still have it within our power to give him the same relief he would undoubtedly secure there. Defendant has filed a petition for rehearing. We find a formal hearing is not necessary, since the matter was fully presented to us previously by both the state and defendant on written briefs and arguments. We now withdraw our previous opinion in State v. Horsey, 176 N.W.2d 769, and consider the appeal on its merits.

Defendant raises only one issue: that the county attorney was guilty of misconduct constituting reversible error entitling him to a new trial. The alleged misconduct occurred in final argument to the jury and rests on two grounds. First, defendant claims the county attorney improperly assailed defendant's witnesses by stating they were not disinterested because of possible suit against them under the dram shop act; and second, defendant asserts the county attorney improperly argued that the jury 'should support its law officers and junless a guilty verdict is returned it will be useless to prosecute cases of this kind.'

The arguments were not recorded. No objection was made at the time. The matter was first brought to the attention of the trial court when defendant filed his motion for new trial. The objectionable part of the arguments was made part of the record by bill of exceptions as provided in sections 786.5 and 786.6, Code of Iowa.

We have permitted alleged impropriety in final arguments to be set out in this fashion. State v. Voelpel, 213 Iowa 702, 704, 239 N.W. 677. See also State v. LaMar, 260 Iowa 957, 967, 151 N.W.2d 496, 501. However, as pointed out there, the fact that such matter may become part of the record by way of bill of exceptions does not eliminate the necessity for having made proper objection at the time the error allegedly occurred.

In other words there are two requirements which must be satisfied before we can afford relief on a complaint such as defendant makes here. First, the improper matter must appear of record in some way so that we may review it. Second, objection must have been made in timely and proper fashion.

Defendant has failed to give us a record upon which we can predicate prejudicial error. It is true he has set out the language he finds objectionable, but that is all. We do not have the argument of defense counsel, which becomes of vital importance in view of the trial court's finding that the statements concerning the witnesses' interest were in rebuttal to remarks of defense counsel. Neither can we disregard the fact that there is serious disagreement over the language actually used. The trial court refused to sign the defendant's bill of exceptions. Section 786.5, Code, provides the judge shall sign the bill 'if true.' Quite obviously court and counsel were at odds over the occuracy of the recitations in the bill. This is, at best, an unsatisfactory record to ask our acceptance of defendant's disputed version f what was argued.

Even if we were to do so, however, defendant is not entitled to a new trial. It should be kept in mind the trial court...

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20 cases
  • State v. Blyth
    • United States
    • Iowa Supreme Court
    • February 19, 1975
    ...sufficient to deprive defendants of a fair trial. This court will interfere only when that discretion has been abused. State v. Horsey, 180 N.W.2d 459, 461 (Iowa 1970); State v. Wright, 203 N.W.2d 247, 251 (Iowa 1972). However, where it appears a fair trial has not been had this court will ......
  • State v. Hahn
    • United States
    • Iowa Supreme Court
    • November 23, 1977
    ...defendant's bill of exceptions. Such a refusal would ordinarily render the bill insufficient to show what transpired. State v. Horsey, 180 N.W.2d 459, 461 (Iowa 1970) and authorities. However we are unable to find from the trial court's holding that counsel were advised of the judge's priva......
  • State v. O'Kelly, 55895
    • United States
    • Iowa Supreme Court
    • October 17, 1973
    ...the burden of proof on defendant. The proceedings are not very clear; we question whether defendant made an adequate record. State v. Horsey, 180 N.W.2d 459 (Iowa); State v. Kendrick, 173 N.W.2d 560 (Iowa); State v. LaMar, 260 Iowa 957, 151 N.W.2d 496. But passing that, the two arguments ap......
  • In re Interest of A.B.
    • United States
    • Iowa Supreme Court
    • April 2, 2021
    ...appeal implicates the appellant's constitutional rights. Swanson v. State , 406 N.W.2d 792, 792–93 (Iowa 1987) (citing State v. Horsey , 180 N.W.2d 459, 460 (Iowa 1970), and Ford v. State , 258 Iowa 137, 142, 138 N.W.2d 116, 119 (1965), as recognizing availability of delayed appeals but den......
  • Request a trial to view additional results

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