State v. Lowder

• Decision Date: 09 June 1964
• Docket Number: No. 51362,51362
• Citation: 256 Iowa 853,129 N.W.2d 11
• Parties: STATE of Iowa, Appellee, v. Donald E. LOWDER, Appellant.
• Court: Iowa Supreme Court

Page 11

129 N.W.2d 11

256 Iowa 853

STATE of Iowa, Appellee, v. Donald E. LOWDER, Appellant.

No. 51362.

Supreme Court of Iowa.

June 9, 1964.

Rehearing Denied July 15, 1964.

Harold D. Vietor, Cedar Rapids, for appellant.

Evan A. Hultman, Atty. Gen., John H. Allen, Asst. Atty. Gen., Jack M. Fulton, Linn County Atty., for appellee.

PETERSON, Justice.

On May 23, 1963, a County Attorney's true information was filed in Linn County charging Donald E. Lowder with the crime of uttering a forged instrument in violation of Section 718.2, 1962 Code of Iowa, I.C.A. Defendant entered a plea of not guilty. Upon trial of the case the jury found defendant guilty. He was sentenced to a term of not to exceed ten years in the Iowa State Penitentiary at Fort Madison. Defendant appealed.

I. Defendant is charged with uttering a draft of United Fire & Casualty Company of Cedar Rapids dated May 13, 1963. The draft was made out originally for $50.56 jointly to defendant and Collins Employees Credit Union. A numeral four was placed in front of the figures of $50.56 on the draft and the words four hundred were filled in, in front of the words Fifty & fifty-six hundredths.

The allegation against defendant is that he took this draft to Federal Discount Corporation in Cedar Rapids and cashed it. Defendant owed said company in the neighborhood of $40.00. He gave the draft to Charles Gaffey, the assistant manager of the company. The draft was endorsed 'Collins Employees Credit Union' and 'Donald E. Lowder.' Mr. Gaffey cashed the draft, taking out the difference between $450.56, and $406.00 and some cents, to pay defendant's bill to the company, and delivered the balance in cash to defendant.

After defendant had entered his plea of not guilty his case was assigned for trial on July 22, 1963. At that time he was represented by an attorney of his own selection named Dwight Krumboltz of Cedar Rapids. On July 12, 1963, defendant's attorney, on his behalf, filed a motion for continuance and as grounds therefor, stated that defendant wanted to complete some hospital treatment, and he needed more time to meet some pressing financial obligations. The County Attorney did not resist the application and the case was continued until the October 1963 term of court. When the October term convened the case was assigned for trial on October 14, 1963.

On October 9, 1963, defendant's attorney, Dwight Krumboltz, withdrew his appearance for and representation of defendant. Lowder was notified as to such withdrawal by letters from Mr. Krumboltz and also from the office of the County Attorney, which letters were received by him on October 10th. On October 11th defendant went to the office of the County Attorney to talk with him about representation. The County Attorney sent him to District Judge Penningroth. Defendant conferred with Judge Penningroth. Defendant advised Judge Penningroth the case was set for trial on October 14th and requested a continuance. Judge Penningroth made an order continuing the case until October 28, 1963. When defendant later testified in connection with his new attorney's motion for further continuance the following questions and answers were asked and answered:

'Q. When you asked for the continuance of Judge Penningroth did you ask that he appoint an attorney for you? A. That wasn't discussed because Judge Penningroth offered to do it, an attorney.

'Q. Did you ask his appointment? A. He so indicated that such time I wouldn't have an attorney that surely the court would appoint me one.'

On October 24th the County Attorney's office contacted appellant by telephone and asked him if he was represented by an attorney and who the attorney was. Appellant's answer was that the County Attorney would find that out next Monday in court.

When defendant appeared in court on Monday, October 28th, he had no attorney. He then for the first time requested the trial court to appoint an attorney to defend him. The trial court complied and appointed Mr. Vietor, an experienced and able attorney. Mr. Vietor came to the court house immediately and moved for a continuance for the purpose of preparing for trial. The request was in fact granted. The trial court stated that the conclusion of the principal trial of the case would be made on November 25th, which gave defendant and his attorney approximately n court. The only reservation made by the court was the selection of the jury on that date and the taking of the testimony of two state's witnesses from Burlington and Storm Lake. When defendant so superciliously advised the county attorney's office on October 24th in effect that he would meet the county attorney with his own attorney on Monday, October 28th, it was only a matter of careful attention to the business by the county attorney that the state subpoenaed two witnesses who were coming from Burlington and Storm Lake. One of the two witnesses was being called into mailitary service, so it was necessary that his testimony be taken promptly.

Mr. Vietor then requested the County Attorney to let him have his private notes as to the investigation of the members of the jury panel. The County Attorney objected saying they were private papers belonging to his office and should not be made public. The trial court sustained the County Attorney as to this point.

The parties then proceeded to select the jury and the two witnesses from out of town were examined by the County Attorney and cross-examined by Mr. Vietor. Appellant's attorney made no objection to this procedure. The case was then adjourned until November 25, 1963.

At the time of adjournment the trial court admonished the jury not to discuss the case with anyone and that they should return on November 25th for the conclusion of the case. However, it was later postponed from the 25th until the 26th of November by reason of the funeral of President Kennedy, which took place on November 25th.

The court also asked the jury to return on the following Monday morning to be ready to render jury service in any other cases on call prior to the conclusion of the case at bar. Appellant's counsel offered no objection to this use of jury procedure at the time it was announced by the trial court. Eight of the jurors and two of the alternates who had been selected in defendant's case served on some civil cases during the period of the continuance. After the court proceeded with the case on November 26th six more witnesses were called on behalf of the state and five witnesses testified for appellant. The case was submitted to the jury on November 27th. The jury returned a verdict of guilty.

II. Appellant raises two questions as errors: 1. The court erred in overruling defendant's motion for continuance made prior to the selection of the jury and the presentation of two witnesses for the state. In connection with overruling the motion for continuance appellant contends he was denied his constitutional right to be properly represented by effective counsel. 2. The trial court also erred in that defendant was denied a fair and impartial trial, since several of the jurors selected for defendant's case served on other juries during the four weeks continuance between the first and second part of defendant's trial.

One vital question is whether or not the constitutional rights of defendant were jeopardized by the examination of two of the state's witnesses on October 28th instead of November 26th. The two witnesses were important in the case. Mr. Pfost was a claim adjuster for the United Fire & Casualty Company of Cedar Rapids. On May 13, 1963, he delivered the draft in question in this case to defendant. He testified when he delivered the draft to defendant it was in the amount of $50.56. Mr. Vietor requested a brief recess in order that he might confer with his client before cross-examining Mr. Pfost. The court recessed for five minutes and defendant and counsel had a consultation.

After the recess defendant's counsel cross-examined Mr. Pfost at length and there was redirect examination by the county attorney. No other material facts than as above stated were elicited.

The other witness called by the state was Mr. Gaffey. In May of 1963 he was the assistant manager for the Federal Discount Corporation in Cedar Rapids. He had been with the corporation for about two and one-half years. He testified that on May 13, 1963, defendant came into the office of the corporation between three and five o'clock in the afternoon. Defendant had an account with the corporation on which he was in arrears for two or three months. The monthly payments on the account were thirteen or fourteen dollars. It was at this time and place that defendant presented the draft which had been given to him by Mr. Pfost on the same date. However, it had been altered as heretofore shown in Division I. The name of the Collins Employees Credit Union was endorsed on the back of the draft by an unauthorized person. Mr. Gaffey did not testify to the fact because he had no knowledge concerning it, but there was testimony by a later witness showing that the endorsement on the draft was not made by anybody connected with Collins Employees Credit Union. Mr. Gaffey, under cross-examination, stated that he always marked on the back of any draft which he cashed, the amount of money paid to the such draftee. Consequently, there appears on the back of the draft Exhibit 1 the figures $406.51. Court adjourned at 4:55 P.M., on October 28th and before the direct and cross-examination of Mr. Gaffey was concluded, so defendant and his counsel had an opportunity on the evening of October 28th to make inquiry concerning Mr. Gaffey. The record shows this inquiry was made. Next day Mr. Vietor cross-examined Mr. Gaffey at considerable length.

Mr. Gaffey also testified he saw defendant the next day after cashing draft at the police station, since the draft had been returned to Federal Discount Corporation by the bank, un-honored. When Mr. Gaffey saw defendan...