State v. Kramer

• Decision Date: 02 May 1961
• Docket Number: No. 50203,50203
• Citation: 109 N.W.2d 18,252 Iowa 916
• Parties: STATE of Iowa, Appellee, v. John KRAMER, Appellant.
• Court: Iowa Supreme Court

Page 18

109 N.W.2d 18

252 Iowa 916

STATE of Iowa, Appellee, v. John KRAMER, Appellant.

No. 50203.

Supreme Court of Iowa.

May 2, 1961.

Kenline, Roedell, Hoffmann, & Reynolds and Donald R. Breitbach, Dubuque, for appellant.

Evan L. Hultman, Atty. Gen., John H. Allen, Asst. Atty. Gen., and Robert L. Oeth, Dubuque County Atty., for appellee.

THOMPSON, Justice.

The trouble with some cases is the people who figure in them. Here, the prosecuting witness charged the defendant with forcible rape, and her testimony substantiated the accusation. The defendant countered with denial of any actual intercourse, and of any force used in the commission of certain admitted familiarities which could by no means be approved by even the most lenient standards of proper conduct. By himself and witnesses he attacked the reputation for chastity of the prosecutrix. On the record, it must be said that neither party came out of the encounter with any added reputation for virtue or seemly behavior, or with any increased odor of roses observable.

The prosecuting witness was a young woman 18 years of age on September 26 1959, the time of the occurrence which forms the basis for the state's charge. The defendant was accused by county attorney's information of the offense of rape contrary to and in violation of Section 698.1 of the 1958 Code of Iowa, I.C.A. It was of course necessary for the state to show unlawful force in the commission of the act charged. The jury found the defendant guilty of the included offense of assault with intent to commit rape, and from judgment on the verdict and the sentence imposed he appeals.

The defendant was represented during the trial by the same counsel who appears for him in this court. He assigns three errors relied upon for reversal: 1, the court erred in instructing on the crime of rape and in submitting this issue because of lack of evidence to support it; 2, the court erred in failing to direct a verdict in favor of defendant and in failing to set aside the verdict because it was clearly contrary to the evidence; and 3, the sentence imposed was excessive and should be reduced.

I. The first and second assigned errors depend much on the same considerations and will be discussed together. Some procedural obstacles first confront the defendant in urging them. He made no motion for a directed verdict at any time; he took no exceptions to the instructions, and made no motion for a new trial. None of the matters urged in the first two assignments of error was at any time called to the attention of the trial court, no ruling was asked on them, and the instructions are not set out in the record. We have repeatedly said that under these circumstances no appealable question is presented to this court. State v. Holoubek, 246 Iowa 109, 111, 66 N.W.2d 861, 862; State v. Walters, 244 Iowa 1253, 1261, 58 N.W.2d 4, 8; State v. Mart, 237 Iowa 181, 185, 186, 20 N.W.2d 63, 65, 66; State v. Bosworth, 170 Iowa 329, 331, 152 N.W. 581, 583.

Why counsel who now urges these matters so strenuously here did not see fit to present them to the trial court we are not advised. But we are asked to consider them because of the provisions of Section 793.18 of the Code, I.C.A., which we quote: 'Decision of supreme court. 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.' This section, counsel thinks, relieves the defendant in this case, or in any criminal proceeding, of the necessity for trying his case according to established rules of procedure, whether staturory or by rule of court or otherwise. We do not agree that procedural matters are mere technicalities which we must in all cases disregard when they have not been followed in the trial court. We think they are substantial.

The right of an accused to counsel when charged with a serious offense is firmly established. But this carries with it corresponding duties. One of the major reasons why the services of counsel are so important is that the rules of procedure may be complied with. The orderly processes of court procedure, as established by many years of trial and error or by legislative enactment, must be substantially observed or the rights of the contesting parties may be lost in a welter of confusion.

So while the right of a defendant to the services of counsel is firmly fixed, it will not do to say that, being so represented, he is immune from compliance with the rules by which established procedure requires trials must be conducted. The trial court, and the state, are entitled to know what the defendant claims, to what he objects; in short, in what respects he contends he is not receiving a fair trial. If, being represented by counsel, he fails to make his position clear, so that the trial court may know his complaints and take care to remedy those which may be well founded, he will ordinarily not be in a strong position to urge error in the appellate court.

It is true that we have, on occasion and when the record showed that a fair trial had not been had, proceeded under Section 793.18, supra, to reverse. State v. Cusick, 248 Iowa 1168, 1170, 84 N.W.2d 554, 555; State v. Martin, 243 Iowa 1323, 1327, 55 N.W.2d 258, 260, 34 A.L.R.2d 904; State v. Cox, 240 Iowa 248, 252, 34 N.W.2d 616, 619. But these were extreme cases, in each of which the record showed amply that the defendant had not had a fair trial. Generally we think that when a defendant is represented by competent counsel, and for reasons of strategy or otherwise questions or objections are not presented to the trial court, there is grave danger they may be considered on appeal to have been waived.

However, since the charge against the defendant here is a serious one, we have determined to extend him leniency by considering his assigned errors on their merits and as though they had been...