State v. Kelley

• Decision Date: 08 May 1962
• Docket Number: No. 50517,50517
• Citation: 253 Iowa 1314,115 N.W.2d 184
• Parties: STATE of Iowa, Appellee, v. Charles KELLEY, Appellant.
• Court: Iowa Supreme Court

Page 184

115 N.W.2d 184

253 Iowa 1314

STATE of Iowa, Appellee, v. Charles KELLEY, Appellant.

No. 50517.

Supreme Court of Iowa.

May 8, 1962.

Rehearing Denied July 23, 1962.

Robert C. Heithoff and James A. Pratt, Council Bluffs, for appellant.

Evan Hultman, Atty. Gen., John H. Allen, Asst. Atty. Gen., Peter J. Peters, Pottawattamie County Atty., Ross F. Caniglia, and George J. Knoke, Asst. County Attys., for appellee.

THORNTON, Justice.

Defendant, Charles Kelley, was indicted by the Grand Jury of Pottawattamie county on March 14, 1961. In the indictment he was charged with murder in that county in that on or about February 22, 1961, he, 'Did, with malice aforethought kill a human being, namely, Alvin E. Koehrsen, in violation of Section 690.1, Code of Iowa, 1958.' The indictment was amended to read, 'Did, with malice aforethought, while attempting to perpetrate a robbery, kill a human being, namely, Alvin E. Koehrsen; * * *.'

Defendant pleaded not guilty. A change of venue to Mills county was granted defendant. The case was tried to a jury commencing May 8, 1961. This trial was concluded on May 16, 1961. The jury failed to return a verdict. On May 18, 1961, the court minutes of the trial court show defendant appeared with his counsel. Counsel for the state was present. At the request of his counsel the defendant took the stand and was questioned by his counsel. He and his counsel were called before the bench and questioned by the court. In answer to questions propounded by both his counsel and the court,

'* * * he stated that he had been fully advised and had counseled with his attorney and that he now wished to withdraw his plea of not guilty and enter a plea of guilty to the crime of first degree murder as provided by the 1958 Code of Iowa as amended, I.C.A. Such plea of guilty to the said crime of murder in the first degree was then entered in open court and the Court now orders that May the 25th at the hour of ten o'clock A.M. in the Mills County Court House hearing is fixed so that the Court may fix the punishment herein as provided by law. * * *.'

The court minutes for May 25 open with this statement:

'Court convened at 10 o'clock A.M. pursuant to an order made on May 18, 1961 for the purpose of permitting the State of Iowa and the defendant to make showing and introduce evidence as either might deem proper for assisting the Court in determining the punishment and the degree of murder to be adjudged against the defendant.'

Defendant and his counsel were present. The court again inquired of the defendant if he realized and understood the import of his plea of guilty to the charge of first degree murder. He replied he did and had been fully advised by his counsel as to applicable law. Opening statements were made and evidence taken. The record shows defendant offered evidence from 2:15 p. m. to 2:45 p. m. and from 3:05 p. m. to 3:08 p. m. Arguments were made for the defendant and the state, concluding at 3:20 p. m. The court fixed June 7 at 11 a. m. for the pronouncement of judgment and sentence.

At this hearing held May 25, 1961, counsel for the state and defendant stipulated the evidence heard in the trial before the jury previously heard by the same trial judge, 'would be the same if it were resubmitted' and 'it is agreed by the parties hereto that the Court shall consider all of that testimony as if it were and had been resubmitted to the Court.' This stipulation included all exhibits introduced in the jury trial. All objections to evidence including exhibits made by defendant in the jury trial were again interposed and overruled by the court. Additional exhibits were offered and admitted over defendant's objection in the May 25 hearing.

The judgment entry of June 7, 1961, shows the case was called, defendant and his counsel were present, and contains the following:

'* * *, and the Court having now fully investigated and considered all the evidence, facts and circumstances as shown by the record in this case, and after exhaustive study, now finds that the defendant Charles Kelley is guilty of the crime of murder in the first degree, * * *.'

The defendant was informed of the charge against him, of his guilty plea, and inquiry was made by the court if there was any reason why judgment and sentence should not now be pronounced and none was stated. Judgment and sentence were entered imposing the death penalty.

The defendant urges six errors for reversal. Two of them are related and will be considered together. They are, the court erred in failing to determine the degree of murder by the examination of witnesses, and erred in considering the appellant's plea of guilty as a plea of guilty in the first degree.

I. Neither the defendant nor his counsel took any exceptions or objections in the trial court to the entry of the plea as shown by the court minutes nor to the procedures in the trial court except his objections to evidence which will be discussed later. We are asked to, and do apply section 793.18, Code of Iowa 1958, I.C.A., which provides:

'If the appeal is taken by the defendant, the supreme court must examine the record, without regard to technical errors or defects which do not affect the substantial rights of the parties, and render such judgment on the record as the law demands; it may affirm, reverse, or modify the judgment, or render such judgment as the district court should have done, or order a new trial, or reduce the punishment, but cannot increase it.'

The duty placed on this court by section 793.18 is to decide criminal appeals according to the very justice of the case as shown by the record without regard for technical errors. State v. Martin, 243 Iowa 1323, 1327, 55 N.W.2d 258, 34 A.L.R.2d 904, and citations. It requires us to enter such judgment as the law demands. State v. Nutter, 248 Iowa 772, 779, 81 N.W.2d 20, 24. And we are not to consider mere technical errors which do not affect the result. State v. Jensen, 245 Iowa 1363, 66 N.W.2d 480; and State v. Neuhart, 228 Iowa 1055, 292 N.W. 791.

II. Defendant contends the words 'first degree' included in his plea of guilty must be regarded as surplusage. We agree. In State v. Martin, supra, we held the addition of the words 'in the first degree' was surplusage only. The indictment in Martin contained allegations while in the perpetration or attempt to perpetrate a rape or robbery contrary to section 690.2. The import assigned to the indictment there was the same as alleging A. B. murdered C. D. under the short form indictment act, section 773.34, Code of Iowa 1958, I.C.A., as any other construction would nullify the provisions of section 690.4, Code of Iowa 1958, I.C.A., providing for the ascertainment of the degree of murder. It is there pointed out there is under our law but one crime of murder and the degrees do not constitute distinct crimes, but gradations of the same crime devised to permit punishment according to the circumstances. State v. Phillips, 118 Iowa 660, 92 N.W. 876. When we consider section 777.12, Code of Iowa 1958, I.C.A., providing the plea of guilty can only be made in open court and by the defendant himself, in substantially the following form: 'The defendant pleads that he is guilty of the offense charged in the indictment', it follows the plea admits only the necessary allegations in the indictment and unnecessary words in the plea are surplusage the same as unnecessary words in the indictment.

III. It therefore follows the trial court was required to treat the plea as simply a plea of guilty to murder and hold a hearing to determine the degree as provided in section 690.4, Code of Iowa 1958, I.C.A. It is there provided, '* * *; but if the defendant is convicted upon a plea of guilty, the court must, by the examination of witnesses, determine the degree, * * *.'

The question here is, was this done? The record shows by stipulation of the parties the trial court was to consider all of the evidence produced by either party in the trial before the jury as well as whatever evidence either the defense or the state wished to offer. Defendant does not complain any offer of evidence on his behalf was refused or he was in any way limited in presenting evidence bearing on the question of the degree of murder. The fact the trial court by stipulation considered evidence previously heard by it in the jury trial does not constitute a failure to determine the degree by the examination of witnesses. This is particularly true here where it was stipulated the evidence would be the same. Nor does it appear defendant's right to cross-examine the state's witnesses was in any manner curtailed. The court heard and considered all of the evidence that would have been produced if the witnesses had been called to testify in the hearing held May 25, 1961. Under the circumstances defendant's rights under section 690.4, Code of Iowa 1958, I.C.A., were fully protected.

In an early case, M'Cauley v. United States, Morris (Iowa) 486, our predecessor, the Supreme Court of Iowa Territory, in considering a statute similar to section 690.4, Code of Iowa 1958, I.C.A., was faced with a similar situation. The statute then provided:

'* * * and if such prisoner be convicted by confession in open court, the court shall proceed by examination of witnesses in open court to determine the degree of the crime, and shall pronounce sentence accordingly.'

The defendant there withdrew his plea of not guilty after the prosecution had presented its case to the jury, and pleaded guilty to the crime charged, and was thereupon sentenced to be hanged. The record did not show witnesses were examined after the guilty plea, or that the court in any manner determined the degree of the crime as contemplated by the statute. The court said:

'* * * but an inquiry and decision as to the more precise nature of the offense are rendered necessary. That inquiry and decision should appear of record. The record shows that before the plea of not...