State v. McNeal, No. 52782

CourtUnited States State Supreme Court of Iowa
Writing for the CourtSNELL; All Justices concur, except RAWLINGS
Citation158 N.W.2d 129,261 Iowa 1387
Docket NumberNo. 52782
Decision Date09 April 1968
PartiesSTATE of Iowa, Appellee, v. James Eugene McNEAL, Appellant.

Page 129

158 N.W.2d 129
261 Iowa 1387
STATE of Iowa, Appellee,
v.
James Eugene McNEAL, Appellant.
No. 52782.
Supreme Court of Iowa.
April 9, 1968.

Page 130

John P. Roehrick, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., David A. Elderkin, [261 Iowa 1388] Asst. Atty. Gen., and Ray A. Fenton, County Atty., for appellee.

SNELL, Justice.

Defendant, James Eugene McNeal, was charged, pleaded not guilty, tried before a judge and jury and convicted of robbery with aggravation as defined in sections 711.1 and 711.2, Code of Iowa. From judgment of imprisonment based thereon he has appealed.

Defendant, testifying in his own behalf, denied participation in the robbery and said he was in Kansas City at the time thereof. Otherwise there was no conflict in the testimony.

A brief summary of the state's evidence will suffice.

In the late afternoon of September 27, 1966 Salstrom's Jewelry Store in Des Moines was robbed by three men, one of whom was armed. Money was taken from the safe and jewelry taken from the display counter. Four people, other than the robbers, were in the store at the time, Mr. Salstrom, the owner, two employees and a customer. All four testified at defendant's trial and three positively identified defendant. Mr. Salstrom, the owner, was in the back of the store, held at gunpoint by one of the other robbers and did not see defendant.

Defendant first entered the store. Patty Nielson, an employee, went to the front of the store to wait on him. Defendant said he wanted to look at a diamond ring for his wife. At about the same time two more men entered the store. One forced Mr. Salstrom at gunpoint to open the safe and give all the money to the third partner in the robbery. Defendant told Patty Nielson to fill two sacks with watches and rings. The other employee, the watchmaker, was forced to go to the front of the store with the customer and pretend to be showing gifts.

After the loot was collected by the robbers the victims were tied up in the back room and the robbers left. Patty Nielson worked herself loose and untied the others.

Two or three days after the robbery Patty Nielson was shown a photograph obtained from Kansas City and identified defendant as one of the robbers. A warrant was issued but defendant was not apprehended until January 4, 1967 when he was found in Des Moines while returning (as he said) from a visit in Minneapolis.

[261 Iowa 1389] After preliminary proceedings in municipal court an information was filed in district court. Counsel was appointed and defendant pleaded not guilty.

On March 17, 1967 the defendant filed a motion for a continuance stating that on the day of the robbery he was not in the State of Iowa, and that he intended to prove his absence from the State by three alibi witnesses who live in Kansas City, Missouri. In the original motion, the defendant identified his wife as one of the witnesses and said that she was suffering complications following a child birth, but did not name the other two. The motion was granted and trial was continued until April 5, 1967.

Section 777.18, Code of Iowa, 1966, provides for notice if a defendant intends to

Page 131

rely on an alibi at the trial. The notice must set forth the names of the witnesses, their addresses, and occupations and a statement of what the defendant intends to prove. On March 31, 1967 the defendant filed such a notice naming his wife, his mother and brother as alibi witnesses for him.

On April 5, 1967 the defendant appeared with a request that the motion for continuance be renewed 'for all the reasons contained in his original motion and additional reason that there has been no material change in the physical condition of his wife * * * who is his principal alibi witness * * *.' The second continuance was granted.

On April 13 a third continuance was requested by the defendant who stated that his wife, mother and brother, who were his alibi witnesses, still would not be able to attend the trial. The third request for continuance was denied and trial was set for April 19, 1967.

We quote from the transcript of the evidence at the hearing for the third continuance.

'THE COURT: In the case of the State of Iowa versus James Eugene McNeal, Criminal Number 53647; this matter comes on for continued hearing on the renewed motion of Motion for Continuance from April 5th, 1967, at which time the hearing was continued until this date.

'At the time of the continuance it was the understanding of the Court that the defendant would produce some medical [261 Iowa 1390] testimony or affidavits or documents relating to the condition of the witnesses whom he proposes to call in this case.

'Mr. Morris, are you prepared to go forward with that evidence?

'MR. MORRIS: Your Honor, it is my understanding that no evidence as such has been produced. I would, however, like to call the defendant to recite this under oath. I have received none; let me put it that way.'

Defendant was sworn.

Direct Examination

'BY MR. MORRIS:

'Q. Will you state your name? A. James Eugene McNeal.

'Q. You are the defendant in an indictment returned by the Polk County Grand Jury charging you with Robbery with Aggravation? A. Yes.

'Q. And you are the James Eugene McNeal who was before this court on the 5th day of April, 1967, on a renewed Motion for Continuance of trial? A. Yes.

'Q. Now, Mr. McNeal, at that time I believe you testified that you had served alibi notice in which you claim that your mother, wife and brother would appear as alibi witnesses in your behalf, is this correct? A. That's correct.

'Q. At that time you also produced some written evidence and your testimony that your wife had recently been delivered of a child, that she had, had complications following delivery and was not able to travel and be here for trial, is that...

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7 practice notes
  • State v. Carey, No. 52942
    • United States
    • United States State Supreme Court of Iowa
    • 11 février 1969
    ...are given as authority. Perhaps our latest decision upon the need to request amplification of an instruction is State v. McNeal, Iowa, 158 N.W.2d 129, 134 which cites with approval the Hardesty, Wessling and Russell opinions, all This from a recent Washington opinion, State v. Dana, Wash., ......
  • Carter v. Carter, No. 18-0296
    • United States
    • Iowa Supreme Court
    • 19 mars 2021
    ...court's discretion in denying a continuance is "very broad." State v. Grimme , 338 N.W.2d 142, 144 (Iowa 1983) (quoting State v. McNeal , 261 Iowa 1387, 1393–94, 158 N.W.2d 129, 133 (1968) ). We will not interfere with a trial court's ruling on a motion for continuance "unless it clearly ap......
  • State v. Hines, No. 56726
    • United States
    • United States State Supreme Court of Iowa
    • 22 janvier 1975
    ...We will not interfere unless there is a clear abuse of discretion. Evans v. Rosenberger, Iowa, 181 N.W.2d 152, 157. In State v. McNeal, 261 Iowa 1387, 1392, 1393, 158 N.W.2d 129, 133, we 'The granting or refusing a motion for continuance rests largely in the sound discretion of the trial co......
  • State v. Hyde, No. 52589
    • United States
    • United States State Supreme Court of Iowa
    • 9 avril 1968
    ...April 1, 1968. On the basis of the foregoing I would reverse and remand with directions that specific findings be made on the issue of [261 Iowa 1387] voluntariness of any confessions or admissions allegedly given or made by MASON, J., joins in this dissent. ...
  • Request a trial to view additional results
7 cases
  • State v. Carey, No. 52942
    • United States
    • United States State Supreme Court of Iowa
    • 11 février 1969
    ...are given as authority. Perhaps our latest decision upon the need to request amplification of an instruction is State v. McNeal, Iowa, 158 N.W.2d 129, 134 which cites with approval the Hardesty, Wessling and Russell opinions, all This from a recent Washington opinion, State v. Dana, Wash., ......
  • Carter v. Carter, No. 18-0296
    • United States
    • Iowa Supreme Court
    • 19 mars 2021
    ...court's discretion in denying a continuance is "very broad." State v. Grimme , 338 N.W.2d 142, 144 (Iowa 1983) (quoting State v. McNeal , 261 Iowa 1387, 1393–94, 158 N.W.2d 129, 133 (1968) ). We will not interfere with a trial court's ruling on a motion for continuance "unless it clearly ap......
  • State v. Hines, No. 56726
    • United States
    • United States State Supreme Court of Iowa
    • 22 janvier 1975
    ...We will not interfere unless there is a clear abuse of discretion. Evans v. Rosenberger, Iowa, 181 N.W.2d 152, 157. In State v. McNeal, 261 Iowa 1387, 1392, 1393, 158 N.W.2d 129, 133, we 'The granting or refusing a motion for continuance rests largely in the sound discretion of the trial co......
  • State v. Hyde, No. 52589
    • United States
    • United States State Supreme Court of Iowa
    • 9 avril 1968
    ...April 1, 1968. On the basis of the foregoing I would reverse and remand with directions that specific findings be made on the issue of [261 Iowa 1387] voluntariness of any confessions or admissions allegedly given or made by MASON, J., joins in this dissent. ...
  • Request a trial to view additional results

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