State v. Jensen

Decision Date19 October 1954
Docket NumberNo. 48343,48343
Citation66 N.W.2d 480,245 Iowa 1363
PartiesSTATE of Iowa, Appellee, v. John Everett JENSEN, Appellant.
CourtIowa Supreme Court

Bradshaw & Crawford, Ft. Dodge, for appellant.

Leo A. Hoegh, Atty. Gen., Raphael R. R. Dvorak, Asst. Atty. Gen., Dale D. Levis, County Atty., Audubon County, and L. L. Ryan, Sp. Prosecutor, Audubon, for appellee.

THOMPSON, Justice.

The grand jury of Audubon County on November 6, 1952, returned an indictment charging the defendant with the crime of breaking and entering the building occupied by the Iowa Liquor Store in Audubon on or about September 25, 1952 with intent to commit the public offense of larceny. Trial resulted in a jury verdict of guilty as charged, and defendant has appealed, assigning several alleged errors. It appears without dispute that on the night of September 25-26 the premises occupied by the store of the Iowa Liquor Commission in Audubon were burglarized and a considerable quantity of merchandise taken therefrom. Shortly thereafter the authorities discovered much of the stolen liquor in Webster County, and the state's evidence showed that it had been in the possession of the defendant immediately after the date of the breaking and entering. There was also evidence that a few days before September 25th defendant had told one Williams that he would have a load of liquor within a day or two, and they discussed the purchase of a part of it by Williams. We think the evidence need not be further detailed, except that it will be briefly referred to in discussing one of the errors assigned by the defendant. Most of the errors alleged are technical and do not turn upon the question of the sufficiency of the evidence.

I. The first contention of the defendant is that there was such misconduct of counsel for the state as to amount to a denial to him of a fair trial. It appears that upon cross-examination of the defendant he was asked if he had ever been convicted of a felony. The answer was in the affirmative; whereupon the cross-examiner asked: 'And where?' Objection was made and sustained. Later, in connection with defendant's testimony that he had worked for one Bitner since July of 1952, at the latter's motel, he was asked by the state's counsel: 'Does he (Bitner) operate a gambling establishment out there?' Objection was made and sustained. The defendant then testified, still upon cross-examination, that he had known Bitner about one year; that he first met him when Bitner was building a house. Then came the question: 'It wasn't back around 1948 or 1949 that you became acquainted with him? A. No. * * * Q. Did you ever meet him in Ft. Madison?' Objection was made and sustained. Later in the trial the court gave the jury an oral admonition concerning the latter question in these words:

'Ladies and gentlemen of the jury, as the defendant in the case gave testimony, one of counsel for the State asked him in substance whether or not he had met Mr. Bitner in Fort Madison. The objection to the question was sustained by the Court. The question was not a proper question and you are to disregard the question entirely, pay no attention to it and divest your minds of any question or inquiry or suggestion that such a question may have been made; pay no attention to it whatever.'

It is from these circumstances that counsel for defendant draw the conclusion, in which we are asked to concur, that their client was denied a fair trial because of prejudicial misconduct of the attorneys for the state.

While we have never held that the place of conviction of a felony is a proper subject for inquiry upon cross-examination of a witness who admits the conviction, we have held the number of convictions may be inquired into. State v. Hall, 233 Iowa 1268, 1271, 1272, 11 N.W.2d 481, 482; State v. Duncan, 233 Iowa 1259, 1263, 11 N.W.2d 484, 486; State v. Williams, 197 Iowa 813, 819, 197 N.W. 991, 994. It seems much more damaging to a defendant to show the number of convictions than in what court or what town or city they were incurred. Perhaps the place of conviction is immaterial, as the trial court evidently held in granting the objection; but we are unable to see where prejudice to the defendant arose from the mere asking of the question.

We agree that the questions concerning the operating of a gambling house by Bitner at his motel, and whether the defendant had met Bitner in Ft. Madison should not have been asked. Ft. Madison is well known to Iowa citizens as the location of the state penitentiary, although it has other and more favorable distinctions. The inference that would commonly be drawn from the question asked would in all probability be that defendant and Bitner had become acquainted while serving sentences in the prison. But the court specifically admonished the jury to pay no attention to and draw no inferences from the question concerning the place of meeting. The trial court found no such prejudicial misconduct of the state's counsel as to require the conclusion that defendant had been denied a fair trial; and it has a considerable discretion in passing upon such matters. In State v. Wheelock, 218 Iowa 178, 182, 254 N.W. 313, 316, we said:

'The matter of granting a new trial for alleged misconduct of counsel and the many incidents that happen in the trial of a case is peculiarly within the discretion of the trial court.'

See also State v. Warren, 242 Iowa 1176, 47 N.W.2d 221; Connelly v. Nolte, 237 Iowa 114, 21 N.W.2d 311; and State v. Cooper, 169 Iowa 571, 151 N.W. 835. It is the sound reasoning of these and other Iowa cases that the trial court has before it the whole scene, the action and incidents of the trial as they occur, and is in a much better position to judge whether the defendant has been prejudiced by misconduct of opposing counsel, if there is such. It must be kept in mind that mere misconduct of counsel is not in itself sufficient to require a reversal of a judgment of conviction in a criminal case. The misconduct must have operated to the harm of the defendant; that is, to deny him a fair trial. The trial court occupies a position of vantage and is rightly given a considerable discretion in determining whether prejudice has resulted. It is not an unlimited discretion, and we have not hesitated to reverse where it has been abused. But we see no abuse in the case before us.

II. The defendant also thinks certain remarks and suggestions of the court in connection with its rulings upon objections to questions propounded were improper and he assigns error thereupon. There were many exceptions taken to these statements of the court, and no useful purpose would be served in setting out the record concerning them. It will suffice to say that the court at no time expressed any opinion as to the weight of the evidence or the merits of the case. Indeed, at one point the court told the jury they should not construe a remark he had just made to counsel as an expression on his part as to what the decision on the facts should be.

Actually the remarks of the court all came in connection with rulings upon objections to evidence. They fell generally into two categories. Some were in explanation of the rulings made, and some defined the limits of the rulings and pointed out how far or in what manner the examination on the point involved might or might not be conducted. The trial court is not a mere umpire of the contest before him, confined to rulings required by objections or requests of counsel. It is his duty to take part in the trial so that its orderly progress may be facilitated. The rule is thus stated in 23 C.J.S., Criminal Law, § 992:

'As a general rule, remarks made by the trial court while ruling on the admissibility and effect of evidence and the validity of objections thereto are not erroneous provided they are not unfair and prejudicial to accused. It is not improper for the court to make remarks in the presence of the jury, giving its reason for admitting or excluding evidence, or to state the purpose for which the evidence is offered or admitted; and ordinarily such remarks, without more, are not objectionable as comments, or the expression of an opinion, on the evidence. * * *'

We have ourselves held, in State v. Carlson, 224 Iowa 1262, 1267, 276 N.W. 770, 773, that a remark by the trial court that questions asked of a witness were very leading, but it would not object so long as opposing counsel did not do so, was not prejudicial error.

We find nothing improper in the remarks of the court in the instant case. They did not express the court's opinion as to the merits of the case, and were evidently made to aid the progress of the trial. There was no error.

III. During the course of the arguments the court declared a recess, but failed to give the jury the admonition required by Sections 780.21 and 780.22, Code of Iowa 1950, I.C.A. The record shows that the jury was duly admonished at other times during the trial. In assigning error, the defendant couples this failure to admonish with another alleged omission, that of complying with Section 780.37, which provides for swearing the bailiff or other officer who has charge of the jury during its deliberations. The record made by the court shows that the bailiff in charge was a regular bailiff of the court, and that he was sworn as required by the latest cited statute within less than five minutes after the jury retired.

It is evident that each of these contentions of the defendant is extremely technical. Ordinarily technical defects in procedure do not call for reversal unless it appears they have in some way prejudiced the complaining party. We think that so far as the failure to admonish at the short recess taken during the closing arguments is concerned the defendant's complaint is sufficiently answered by the statement that he did not see fit to call the court's attention to it at the time. It was first advised of defendant's claim of error in this respect in his ...

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    ...v. Rank, 214 N.W.2d 136, 138 (Iowa 1974); State v. Thompson, 254 Iowa 331, 337, 117 N.W.2d 514, 517 (1962); State v. Jensen, 245 Iowa 1363, 1367, 66 N.W.2d 480, 483 (1954). We thus turn to the question of whether defendant was deprived of his constitutional right to a fair trial by expanded......
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