State v. Kirkpatrick
| Decision Date | 23 October 1935 |
| Docket Number | 42838. |
| Citation | 263 N.W. 52,220 Iowa 974 |
| Parties | STATE v. KIRKPATRICK. |
| Court | Iowa Supreme Court |
Appeal from District Court, Woodbury County; Miles W. Newby, Judge.
Indictment under section 13141 providing punishment for uttering counterfeit public securities. Verdict of guilty. Judgment on the verdict affirmed.
Affirmed.
In prosecution for uttering counterfeit bonds, conversation had by party accused of uttering counterfeit bonds with attorney in respect to negotiating such bonds held not privileged where accused knew at time that bonds were forgeries, and consequently was engaged in attempt to commit a crime. Code 1931, § 13141 (I.C.A. § 718.3).
Carlos W. Goltz, of Sioux City, for appellant.
Edward L. O'Connor, Atty. Gen., Walter F. Maley, Asst. Atty Gen., and M. E. Rawlings, Co. Atty., of Sioux City, for the State.
The defendant, appellant, was indicted August 4, 1934, by the grand jury of Woodbury county, Iowa, for unlawfully and feloniously uttering of four $1,000 bonds of the city of Omaha, Neb., bearing 4 1/2 per cent., and payable in 1945. The county attorney and his assistant prosecuted the case and attorney Lafe Bond and an attorney named Strong appeared for the defendant, Strong withdrawing after making a few objections. Carlos Goltz, an attorney, appeared October 13 for the defendant, after the verdict was rendered. The jury returned a verdict of " Guilty" on September 26, 1934, saying, " We, the jury, find the defendant W. C. Kirkpatrick guilty of the crime of uttering a counterfeit public instrument as charged in the indictment."
The defendant filed first, October 3, a motion for new trial; second, October 13, exceptions to instructions; third, October 15, motion in arrest of judgment and for new trial. None of these were within the statutory time, and the abstract of record in this case fails to show the filing time of any one of these instruments. An amendment to the abstract shows that all of the instruments were filed after the statutory period for filing same, October 1, 1934.
The state filed motion to strike these various defense motions. The court had a hearing on these various matters; took testimony in which hearing attorney Bond was a witness, and he said he assumed the granting of extension of time in which to render judgment carried with it the right of filing motions or exceptions to the court's instructions, and that he was merely mistaken as to the provisions of the law with respect to that, and that he had no understanding with a representative of the county attorney's office, or the court, which led him to arrive at that conclusion. The court remarked that there was nothing said at the time, nor at any time, that the court would extend the time beyond the provisions of the statute for filing motions for new trial, for filing exceptions to instructions, or motions for arrest of judgment and for new trial. And in ruling thereon he sustained the county attorney's motion to strike motion for new trial, and to strike all that part of the instrument filed by the defendant entitled " Motion in arrest of judgment and for new trial," so far as it asked for a new trial, and overruled the part of the motion for arrest of judgment. The court then sentenced the defendant to imprisonment for a term of twenty years, as provided in section 13141 of the Code. In these rulings of the court on the motions there was no error. State v. Higgins, 192 Iowa, 201, 182 N.W. 887; State v. Barr, 123 Iowa, 139, 98 N.W. 595; State v. Schwab, 112 Iowa, 666, 84 N.W. 944.These cases all lay down the rule that the exceptions and motions must be filed in time, or they will be disregarded by this court. As to the ruling upon that part of the motion for new trial and arrest of judgment, which has to do with the arrest of judgment, this is dealt with by section 13946 of the Code of 1931, which is as follows:
This section appeared in the Code of 1897 as section 5426 and was considerably different, and therein it was provided, amongst other grounds, that the motion might be filed upon " any ground which would have been ground of demurrer." This portion has disappeared. So that now, practically, the courts hold that the motion cannot be sustained upon the grounds which would be grounds for demurrer. State v. Frey, 206 Iowa, 981, 221 N.W. 445.
The only ground now which can be included in a motion in arrest of judgment under section 13946 is when upon the whole record no legal judgment can be pronounced. In this case it was submitted to the jury properly. Any exceptions that might have been taken were waived by the failure to preserve in time. Hence, since the statute has been changed to read as it now does, there is no room in this state for a motion in arrest of judgment, except " upon the whole record no legal judgment can be pronounced."
The only exception that is properly preserved in this case is reference to the testimony of A. D. Clem, a member of the firm of Clem & Miller, attorneys at Sioux City, Iowa. Mr. Clem was called as witness by the state, and was asked if he ever had any conversation with Kirkpatrick around the first of May, and what was the business concerning which he talked. An objection was made that it was a privileged communication. The objection was overruled. Clem & Miller had been retained as attorneys for the defendant, who was administrator of an estate which had no property except a tort claim. Mr. Clem was asked if he had any conversation about bonds with Kirkpatrick, in reference to the four bonds involved in this case. He said when Kirkpatrick asked him about the bonds that he, Clem, suggested that the Chicago Board of Trade be written about them, and that Kirkpatrick said he got the bonds in a real estate transaction. Then Mr. Clem suggested calling in a bond broker. Kirkpatrick wanted to leave the bonds with Clem, who had no facilities for handling them. They then called Mr. Dansby, a local broker, who came to Clem's office, and the matter was talked over. The bonds were turned over by Kirkpatrick to Dansby, and a receipt was given at the time, said receipt being to Clem & Miller, and when Miller saw it he objected to the same, and it was then changed to Kirkpatrick in care of Clem & Miller. The bonds were sold by Dansby as a broker. The question of forgery came up while Dansby was negotiating, and was talked over. Dansby sent his check for about $4,200 to Clem & Miller, payable to Kirkpatrick. They gave the check to Kirkpatrick, who cashed it, and he paid $65 of the money to Clem & Miller. Mr. Clem testified that was for a part of his services in reference to the bonds, and that he also took into consideration the compromise of various doctor bills in the estate that had not been paid. Clem said he had no other conversation with Kirkpatrick, except when Kirkpatrick was in jail.
The question which arises is: In the transaction between Clem and Kirkpatrick, was Clem employed as an attorney in the matter, or was he not simply acting for Kirkpatrick in putting him in touch with a broker? The evidence shows he was simply so acting.
Stoddard v. Kendall, 140 Iowa, 688, 119 N.W. 138, 140, was a case where a lawyer, in preparing a will for a widow who had continued in the occupancy and control of a property as a homestead, said to Mr. Willett, the attorney, Mr Willett was asked for this testimony, and it was admitted and objected to as a confidential communication. The court said: ...
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