State v. Loos

• Decision Date: 20 December 1909
• Citation: 145 Iowa 170,123 N.W. 962
• Parties: STATE v. LOOS.
• Court: Iowa Supreme Court

145 Iowa 170

123 N.W. 962

STATE

v.LOOS.

Supreme Court of Iowa.

Dec. 20, 1909.

Appeal from District Court, Polk County; W. H. McHenry, Judge.

Indictment for perjury. The defendant was found guilty, and appeals. Reversed.Alfred H. McVey, for appellant.

H. W. Byers, Atty. Gen., Chas. W. Lyon, Asst. Atty. Gen., and Lawrence De Graff, Co. Atty., for the State.

WEAVER, J.

Condensed from the record, which is by no means a model of clearness, the history of this case may be stated as follows: In the year 1907 the appellant, Loos, was occupying office rooms under a lease from one Watrous. In October of said year Watrous, claiming the rent to be in arrears in the sum of $195, brought suit therefor aided by attachment in the district court. Later the parties entered into an agreement of settlement, in witness of which a writing was made and signed in the following terms: “Des Moines, Iowa, December 24, 1907. Memorandum of Agreement. Received of B. F. Loos one hundred seventy-five dollars ($175) cash and said Loos is to pay a balance of $31.00 on or before ten days from date hereof to C. J. Eller, which payment if made as above specified is to be and is in full of office rent on rooms 207 and 208 Watrous Block, Des Moines, to June 1, 1908, and said payments if made as herein provided are to be in full to June 1, 1908, for the rent of said rooms. If said Loos does not pay the balance, $31.00, within ten days from the date hereof, he is to move out at the expiration of the said ten days without any notice of any kind by the said Watrous for the possession of said rooms, which rooms are to be used by said Loos as office and living rooms as now occupied. Sophia G. Watrous, By C. J. Eller, Atty. B. F. Loos.” This paper was made in duplicate, one copy being taken by each party, and appellant then and there paid the sum of $175. Soon after this Mr. Eller, attorney for Watrous, claimed that a mistake had been made in the written agreement of settlement, and that the deferred installment should have been made $41, instead of $31, and he changed his copy by erasure to make it so read, and alleges that appellant herein agreed to make the same change in the copy in his hands. It was also the claim of Eller, and is now the claim of the state, that said written agreement was accompanied by the parol agreement of the appellant to pay the costs which had accrued in the attachment proceedings. When the deferred payment became due, appellant tendered to Eller the sum of $31 in alleged performance of the agreement, which tender was refused by the latter, who also demanded that the costs be paid. At this state of the proceedings, we infer, though we do not find it clearly stated, Watrous began forcible entry and detainer proceedings before a justice of the peace to exclude appellant from the leased rooms, and on the trial of that case appellant and other witnesses gave testimony respecting the two points in controversy--the amount which he had agreed to pay in settlement, and the payment of the costs in the attachment suit. Thereafter the attachment case in the district court which had never been tried or dismissed of record came on for hearing solely on the question of costs. The indictment alleges that at said hearing in the district court appellant, being duly sworn, testified that he “never agreed to pay any costs within 10 days from the date of an agreement to pay said costs, and that he never entered into any agreement to pay any costs arising by reason of” said attachment proceedings. The denial of the truth of said testimony is in the following words: “Whereas, in truth and in fact, as said B. F. Loos well knew, he the said B. F. Loos did agree to pay the costs arising by reason of certain attachment proceedings, and did agree to pay said costs within 10 days from the date of the agreement entered into,” etc. The principal assignments of error on which a reversal of the judgment below is sought are as follows:

1. The denial of the truth of the alleged testimony is said to be insufficient under the rule applied in State v. Gallaugher, 123 Iowa, 378, 98 N. W. 906, in that it...