State v. McDougal

• Decision Date: 07 March 1922
• Docket Number: 33974
• Citation: State v. McDougal, 193 Iowa 286, 186 N.W. 929 (Iowa 1922)
• Parties: STATE OF IOWA, Appellant, v. W. G. MCDOUGAL, Appellee
• Court: Iowa Supreme Court

186 N.W. 929

193 Iowa 286

STATE OF IOWA, Appellant, v. W. G. MCDOUGAL, Appellee

No. 33974

Supreme Court of Iowa, Des Moines

March 7, 1922

Appeal from Polk District Court.--LESTER L. THOMPSON, Judge.

THE trial court excluded certain evidence offered by the State and then sustained defendant's motion to direct a verdict of acquittal. The State appeals.

Reversed.

Ben J Gibson, Attorney General, B. J. Powers, Assistant Attorney General, and A. G. Rippey, for appellant.

Charles S. Bradshaw and Casper Schenk, for appellee.

PRESTON J. STEVENS, C. J., WEAVER and DE GRAFF, JJ., concur.

OPINION

PRESTON, J.--

1. At the outset, appellee raises the question that this court has no jurisdiction to entertain the appeal, for the reason that no final judgment was entered against the State. The record does not show a final judgment against the State for costs. But, as said, the court sustained defendant's motion for a directed verdict of acquittal, and directed the jury to return such a verdict, and such verdict was signed and returned to the court, as directed. This was final as to the defendant. The statute, Section 5430, Code, 1897, provides that, under such circumstances, the court must render judgment of acquittal immediately. There was nothing else for the court to do, upon sustaining the motion, but to enter judgment or direct it to be done. It may be that we should indulge the presumption that the trial court did its duty. Under the statute cited later in the opinion, we think there is such a presumption. It would have been a simple matter to have entered judgment. On the other hand, it would have been a simple matter for appellant to state the fact in the abstract, if it is a fact, that the judgment was entered, or perhaps to have asked the court to enter the judgment, if it was not done. No criticism is intended; and yet these small matters in 500 or 600 cases a year, which are argued at some length, sometimes make unnecessary labor for the court, and counsel as well. The court had authority to rule on defendant's motion. The ruling ended the case, so far as the defendant is concerned, even though no formal judgment of acquittal was entered. We assume that defendant would not contend otherwise. The only other judgment which could have been rendered would have been against the State for costs. We suppose no execution could issue against the State to make such a judgment. We do not understand that costs in criminal cases are paid in that method. It has been held that costs, in one sense, are not a part of the judgment, and no appeal would lie from such a judgment unless some matter in reference thereto has been passed upon by the trial court. Fisher v. Burlington, C. R. & N. R. Co., 104 Iowa 588, 590, 73 N.W. 1070; Young v. Rutherford, 190 Iowa 414, 176 N.W. 241. We have held that the ruling on a motion to direct a verdict is appealable, and in some cases, if necessary, the appeal will be considered as taken from an order directing a verdict, where the record fails to show that any judgment was rendered. Clark v. Van Loon, 108 Iowa 250, 79 N.W. 88; Gibson v. Iowa Legion of Honor, 178 Iowa 1156, 1179, 159 N.W. 639. The notice of appeal in the instant case recites that notice of appeal was duly given, in the manner and within the time specified by statute, and service made and return thereof filed, as provided by law. It does not recite whether the appeal is from a final judgment or from the ruling on the motion for verdict. No complaint is made as to the form of the statement in the abstract in this matter.

But aside from all these matters, the statute, Section 4139, Code Supplement, 1913, provides that:

"All objections to the jurisdiction of the court to entertain an appeal must be made in printed form, stating specifically the ground thereof, and served upon the appellant, or his attorney of record, not less than ten days before the date assigned for the submission of the cause."

We do not understand appellee to claim that this provision of the statute was complied with. The rules of procedure in civil cases are to be followed in appeals in criminal cases, at least so far as applicable. Section 5461, Code, 1897. We have held, under Section 4139, that the presumption is in favor of the jurisdiction, unless appellee specifically demonstrates that the court is without jurisdiction, and in the manner pointed out by the statute; that mere paucity of the recitals in the abstract is no longer of consequence; that, in the absence of objections, and in the manner pointed out by the statute, we indulge the presumption that the record presents nothing but that which we have power to review. Sawyer v. Iowa Const. Pro. Amend. Assn., 177 Iowa 218, 158 N.W. 679; Franke v. Kelsheimer, 180 Iowa 251, 262. We think that appellee's objection as to this feature of the case is not well taken.

2. Appellee further contends that appellant's argument should have been filed September 20, 1921. There was a delay of a few days, and it was not served upon appellee until October 10th. Appellee filed a motion to affirm, or rather that the case should be submitted as of the date of appellant's default; and the question is now presented in the briefs. Appellee states that it had the option to have the case submitted upon the record then on file, but concedes that such option is subject to the discretion of the court. It is claimed by appellee that the appeal was regularly set to be heard on October 20, 1921, but it was not heard and submitted until February, 1922, and the case is fully argued by both parties. This being so, and defendant having been acquitted, we are unable to see that any prejudice has resulted to him. The abstract does not show the reason for the postponement to February. With so many cases before the court, it would, of course, be the better practice and cause less confusion if the rules were observed, and filings made in accordance therewith. We realize that this is not always practicable. However, it is a matter within the discretion of the court whether arguments will be considered, even though not filed in time. Ordinarily we do not refuse to permit a hearing, where no prejudice appears. Buehner v. Creamery Pkg. Mfg. Co., 124 Iowa 445, 100 N.W. 345; Baker v. Oughton, 130 Iowa 35, 106 N.W. 272; Wood v. Hall, 138 Iowa 308, 110 N.W. 270; Moore v. Crandall, 146 Iowa 25, 124 N.W. 812; Flickinger v. Farmers' M. F. & L. Ins. Assn., 136 Iowa 258, 113 N.W. 824.

3. Coming now to the merits of the appeal. The errors complained of relate to the rulings of the trial court excluding certain evidence offered by the State. The defendant was indicted under Section 1641-g, Code Supplement, 1913, relating to false statements by corporate officers, intended to affect the market value of corporate shares, which provides:

"Every director, officer, or agent of any corporation or joint-stock association, who knowingly concurs in making, publishing, or posting, either generally or privately, to the stockholders or other persons, any written report, exhibit, or statement of its affairs or pecuniary condition, or book or notice containing any material statement which is false, or any untrue or willfully or fraudulently exaggerated report, prospectus, account, statement of operations, values, business, profits, expenditures, or prospects, or any other paper or document intended to produce or give, or having a tendency to produce or give, the shares of stock in such corporation a greater value or a less apparent or market value than they really possess, is guilty of a felony, and upon conviction thereof shall be punished * * *"

On October 22, 1919, the defendant was treasurer and a director in the now defunct Associated Packing Company, which is being liquidated under a receiver. At that time, one Frisbe was president, and B. F. Cheshire was accountant of that company. The evidence was such as that it could be found that defendant knowingly concurred in making and publishing a statement of the affairs and pecuniary condition of the packing company as of the date last given. Such statement was sent out and given to different persons. The substance of the statement is as follows:

FINANCIAL STATEMENT OF THE ASSOCIATED PACKING COMPANY,

AS OF THE YEAR ENDING OCTOBER 22, 1919.

Resources

Cash in hand

$ 7,032.65

Cash in banks

77,862.43

Bills receivable

2,477,628.40

Plant

165,000.00

Real estate, water and ice supply

535,000.00

Sand and gravel

50,000.00

Elevator

75,000.00

Materials and tools

45,000.00

And other miscellaneous named items such as office

fixtures, stationery, and so on, making in all a

total of

$ 3,489,946.43

Deficit

144,041.05

$ 3,633,987.48

35,728 SHARES SOLD AT A COST OF 4.032 PER CENT.

[This last item is printed in red printer's ink, and in larger

type.]

Liabilities

Owing on real estate contract

$ 50,000.00

Accounts payable

1,187.40

Capital stock

2,572,800.00

$ 3,633,987,48

The indictment charges, in substance, that defendant, being then and there an officer and agent of said packing company, a corporation, etc., did then and there knowingly and feloniously concur in making and publishing a written statement of the affairs and pecuniary condition of said Associated Packing Company, with the intent to produce and give to the shares of stock of such corporation a greater value than they really possessed; that defendant did knowingly and feloniously concur in making and publishing a financial statement of said packing company as of the year ending October 22, 1919 (same as before set out); and that said defendant therein did knowingly falsely state that said packing company had as a resource cash in banks in the sum of $ 77,862.43, and that 35,728 shares of stock had been sold in said packing company at a...