State v. Jensen

• Decision Date: 09 January 1917
• Docket Number: No. 31352.,31352.
• Parties: STATE v. JENSEN.
• Court: Iowa Supreme Court

178 Iowa 1098

160 N.W. 832

STATE

v.JENSEN.

No. 31352.

Supreme Court of Iowa.

Jan. 9, 1917.

Appeal from District Court, Hamilton County; E. M. McCall, Judge.

Indictment charging defendant with the seduction of Hattie Arends. The Honorable D. C. Chase was employed as special counsel to aid the state. His so acting was objected to on the ground that he was disqualified by the provision of section 305 of the Code of 1897, which prohibits an attorney from thus assisting the state if he be interested in a civil action in which recovery might be had upon what is involved in the criminal prosecution. Mr. Chase was, notwithstanding the objection, permitted to act. Defendant was convicted, and appeals. Reversed.Wesley Martin, of Webster City, for appellant.

Geo. Cosson, Atty. Gen., and John Fletcher, Asst. Atty. Gen., for the State.

SALINGER, J.

A timely and adequate objection was interposed. In a sense, this fact makes a case of first impression in this jurisdiction. No decision of our own is cited, and on very considerable research we have found none in which, on timely objection, a refusal to exclude the special counsel was sustained, or wherein, on such objection, the refusing to exclude him worked a reversal. In other words, all our cases, and many others, have not reached the question here presented.

State v. Smith, 108 Iowa, 440, 79 N. W. 115, turns upon failure to make timely objection. In State v. Lounsbury, 159 N. W. 1000, we attach almost controlling importance to the fact that while objection was made on the first trial none was made on retrial before a different judge, and we hold that this failure to object waived the point.

[1]Snyder v. Tribune Co., 161 Iowa, at 679, 143 N. W. 519, deals with the part of the statute which prohibits the county attorney from engaging for a private party in any proceeding “pending or arising in his county,” etc. The decision turns on that “the county attorney was not appearing in a civil case in the county of which he was the prosecuting attorney.” The cases of Commonwealth v. Williams, 2 Cush. (Mass.) 582,Rounds v. State, 57 Wis. 45, 14 N. W. at 866,People v. Schick, 75 Mich. 592, 42 N. W. at 1009, and People v. Etter, 72 Mich. 175, 40 N. W. 241, deal with statutes which prohibit employment of counsel to aid the state by private parties interested in the prosecution, and turn on failure to allege or prove an employment by such parties. State v. Rue, 72 Minn. 296, 75 N. W. 235, and Ward's Case, 61 Vt. 153, 17 Atl. 483, hold that permitting one in private employ to assist is a matter of discretion, even if the prosecution involve matters as to which the assistant is employed on the civil side. Of course, this is not so under our statute which expressly prohibits such dual employment. People v. Foote, 93 Mich. 38, 52 N. W. 1036,Commonwealth v. King, 74 Mass. (8 Gray) 501,Jackson v. State, 81 Wis. 127, 51 N. W. 89, and Goemann v. State, 94 Neb. 582, 143 N. W. 800, decide merely that having appeared for the state in parts of a criminal inquiry does not require exclusion at the final trial. State v. Huegin, 110 Wis. 189, 85 N. W. 1052, 62 L. R. A. 700, holds that private employment in habeas corpus does not work exclusion because the hearing on the writ is not a criminal case. U. S. v. Twining (D. C.) 132 Fed. 129, and Bellison v. Apland, 115 Iowa, 601, 89 N. W. 22, hold that the civil and the criminal case do not involve the same facts.

People v. Foote, 93 Mich. 38, 52 N. W. 1036,Rounds v. State, 57 Wis. 45, 14 N. W. at 866,Commonwealth v. Williams, 2 Cush. (Mass.) 582,Lawrence v. State, 50 Wis. 507, 7 N. W. 343, and Commonwealth v. Knapp, 10 Pick. (Mass.) 477, 20 Am. Dec. 534, involve a state of facts under which it is manifest that the assistant had no interest in the civil case. People v. Schick, 75 Mich. 592, 42 N. W. 1009, holds: (1) Private employment is not established; (2) if it were, there will be no reversal so long as counsel did no more than to argue a motion to quash information, asked a few questions of one witness, and then withdrew. Whitcomb v. Collier, 133 Iowa, 303, 110 N. W. 836, and State v. Rocker, 130 Iowa, 239, 106 N. W. 645, exclude counsel for the state who have been in the employ of the defendant, and can have no application here. In the present case the civil suit was based on the alleged seduction for which defendant in both cases is being prosecuted, and Mr. Chase assisted in the trial on the indictment throughout. It is self-evident that the cases to which we have referred do not settle that refusing to exclude him was rightful. They leave open whether he had such interest in the civil suit as is contemplated by our statute.

[2] 1a. Upon this question a consideration of judicial history will be helpful. Legislatures and courts were for a long time of opinion that private counsel should in no case be permitted to aid in criminal prosecutions. This is evinced in statutes prohibiting public prosecutors from engaging in private litigation or taking private pay for prosecuting, under which the courts held that private counsel employed by the prosecutor could not assist, on the ground that when they assisted they were in fact public prosecutors who took compensation from private parties. See Biemel v. State, 71 Wis. 444, 37 N. W. 245, 246;Wight v. Rindskopf, 43 Wis. 344;State v. Russell, 83 Wis. 330, 53 N. W. 441;Roberts v. People, 11 Colo. 213, 17 Pac. 637;State v. Bartlett, 55 Me. 200;Meister v. People, 31 Mich. 106;Sneed v. People, 38 Mich. 251;Commonwealth v. Gibbs, 70 Mass. (4 Gray) 146. Were these to rule, Mr. Chase should have been excluded merely because his service for the state was being compenstated for by private persons. They do not rule because we held in State v. Shreves, 81 Iowa, 623, 624, 47 N. W. 899, that private employing to assist the public prosecutor is not prohibited by section 4, chapter 3, of Acts 21st Gen. Assem. (see State v. Montgomery, 65 Iowa, 483, 22 N. W. 639, and state v. Helm, 92 Iowa, 540, 61 N. W. 246), and because section 305 of the Code of 1897 excludes only those who “are interested in any civil action,” etc. Now, while the statute makes inapplicable the ground that private retaining of counsel violates prohibitions against acceptance of private pay by public officers for performing a public duty, that very statute preserves the potency of other arguments for said doctrine, because it makes its inhibition depend upon the presence of interest other than that to be served by a public officer. It forces the question whether one objected to has such an interest.

[3] It is enough to disqualify that the facts in the civil case “were somewhat interwoven with the facts said to be involved in this case.” Roberts v. People, 11 Colo. 213, 17 Pac. 637. The special counsel are to act with as much impartiality as the prosecuting attorney; counsel having a private interest “can in no fair sense be said to be employed by or on behalf of the people.” Sneed v. People, 38 Mich. at 251. He “is a quasi judicial officer, retained by the public for the prosecution of persons accused of crime, in the exercise of a sound discretion to distinguish between the guilty and the innocent.” Wight v. Rindskopf, 43 Wis. 344;State v. Russell, 83 Wis. 330, 53 N. W. 441. It is said in Flege v. State, 93 Neb. 610, 142 N. W. 278, 47 L. R. A. (N. S.) 1106, to be clear “that the appointment of a partisan special prosecutor was not in the interest of the fair and impartial trial guaranteed by the Constitution.” In Rock v. Ekern, 162 Wis. 291, 156 N. W. 197, L. R. A. 1916D, 459, the contract for paying the special counsel was held to be against public policy, and on the ground that prosecutors in criminal cases should be free from prejudice and have no private interest in the prosecution. People v. Hurst, 41 Mich. 328, 1 N. W. 1027, holds that the mischief aimed at by the exclusion “is the prosecution of criminals by counsel who represent private interests, and who cannot be supposed to be impartial.” In Meister v. People, 31 Mich. 107, it is said it must be assumed the Legislature regard it unsafe and opposed to even-handed justice that it should be made possible “to allow those who have a direct pecuniary interest in convicting a prisoner to take an active part in his trial”; that the Legislature must have considered it improper “to allow the course of the prosecuting officer during the trial to be exposed to the influence of the interests or passions of private prosecutors”; that the prosecutor has a duty to be impartial not altogether unlike that of the judge himself, and that so exposing him will work against the maintenance of that impartiality; that such statutes “have been designed to secure impartiality from all persons connected with criminal trials.” In the same case it is said:

“The experience of trials shows that any other position is fallacious. When counsel are introduced into a cause, and aid in the trial or argument, it is little short of absurd to suppose they can be prevented from having their own way. It would be unseemly and unprofitable for one counsel, during a trial, to interfere with his associate's questions or arguments; and competent auxiliaries would not be engaged on terms which would subject them to open slights. We must look at things as they exist; and every one knows that if a prosecuting attorney allows the counsel of private parties to intervene, it must usually be for the reason that they will save him labor, and assume the burden of the prosecution. The mischief which the law aims to avoid is, prosecution by interested parties; and if such is the policy of the law, it ought to be carried out.”

Recognizing that the retainer implies permitting activity, it was held in State v. Price, 111 Mo. App. 423, 85 S. W. 923, that where the prosecuting witness himself was allowed to open and close to the jury, the court could not avoid considering his natural frame of mind, and that he was afforded license to...