State v. Moore

• Decision Date: 12 December 1933
• Docket Number: No. 41607.,41607.
• Citation: 217 Iowa 872,251 N.W. 737
• Parties: STATE v. MOORE et al.
• Court: Iowa Supreme Court

217 Iowa 872

251 N.W. 737

STATE

v.MOORE et al.

No. 41607.

Supreme Court of Iowa.

Dec. 12, 1933.

Appeal from District Courts, Jones and Cedar Counties; H. C. Ring, Judge.

In this cause, the defendants Paul P. Moore and J. W. Lenker were informed against by the State on the charge of conspiracy. There was a trial to a jury, which returned a verdict of guilty. On that verdict, judgment was entered and sentence imposed. From the judgment, the defendants appeal.

Affirmed.J. C. France, of Tipton, H. J. Ferguson, of Tama, and W. L. Harding, of Des Moines, for appellants.

Edward L. O'Connor, Atty. Gen., and Walter F. Maley, Asst. Atty. Gen., William M. Dallas, Co. Atty., of Tipton, Clifford B. Paul, of Anamosa, and Donnelly, Lynch, Anderson & Lynch, of Cedar Rapids, for the State.

KINDIG, Justice.

On October 27, 1931, the county attorney of Cedar county filed against the defendants-appellants, Paul P. Moore and J. W. Lenker, a county attorney's information charging that they, together with others, entered into a conspiracy on the 21st day of February, 1931. According to the county attorney's information, the defendants “did conspire and confederate together with themselves and with certain other persons, with the fraudulent and malicious intent to do illegal acts injurious to the public health, trade, morals, police and the administration of public justice, to-wit: To unlawfully prevent, hinder, and obstruct the authorized veterinarians of the Department of Agriculture of the State of Iowa, from conducting the tuberculin test on the dairy and breeding cattle owned by the defendant J. W. Lenker; and to aid and abet the said certain other persons to prevent, hinder and obstruct the said veterinarians from conducting such tests for tuberculosis on their dairy and breeding cattle.”

It is further charged in the information that “it was the intention and the design of the defendants, Paul P. Moore and J. W. Lenker and the said certain other persons, to effect the objects of the conspiracy by unlawfully assembling together in a violent and tumultuous manner, and when so assembled to unlawfully prevent, hinder, and obstruct the said veterinarians from conducting such test for tuberculosis on the dairy and breeding cattle owned by the defendant J. W. Lenker, and upon those owned by the said certain other persons, by unlawfully and violently assaulting, threatening and intimidating the said veterinarians, to the disturbance of others.”

“And that in pursuance and consummation of the said conspiracy the defendants, Paul P. Moore and J. W. Lenker did on different occasions and unlawfully assemble together with certain other persons, in a violent and tumultuous manner, and when so assembled, unlawfully assault the said veterinarians, and did by force, violence and intimidation, prevent, hinder and obstruct the administration and conducting of the tuberculin test, on the dairy and breeding cattle owned by the defendants J. W. Lenker and upon those owned by certain other persons.”

To that county attorney's information the defendants pleaded not guilty. Thereafter the defendants were tried on the information before a jury. The jury found the defendants guilty, and they were sentenced by the court accordingly. Wherefore the defendants appeal. On their appeal, they assign many alleged errors for reversal. These errors include the failure of the district court to grant a continuance, the failure of the district court to sustain their demurrer to the county attorney's information because it is bad for duplicity, the failure of the district court to grant the defendants separate trials, the failure of the district court to sustain the motion for a directed verdict, the failure of the district court to permit the defendants to introduce into evidence certain exhibits to show certain litigation involved under the bovine tuberculosis statute, in order to prove that the defendants in their various activities legitimately sought to obtain relief from an alleged unconstitutional statute, the failure of the district court to sustain objections interposed by the defendants to certain evidence offered by the state, and the failure of the district court to prevent the state's attorneys from asking certain alleged improper questions on cross-examination.

For convenience, we will consider these propositions in the following order. Under any order, because of the numerous and unrelated errors assigned, the discussion necessarily will appear more or less disjointed.

[1][2] I. As before stated, the county attorney's information was filed against the defendants in October, 1931. Apparently the cause came on for hearing December 18, 1931, and the state then filed a motion for a change of venue. After considering the motion, the district court sustained it, and the cause was transferred from Cedar to Jones county.

In January, 1932, the cause came on for hearing in the Jones county district court, but the defendants desired a continuance, so they filed a motion therefor. This motion, generally speaking, was based upon two grounds. Such grounds were: First, that their attorney, J. C. France, was at that time engaged in the trial of an equity case in the Cedar county district court, and that the equity suit would not be completed until some time during the first week in February; and, second, that the defendants' attorney, Mr. France, had a case pending in the federal District Court in Davenport, and that this cause probably would require a month's time for trial. Because of these circumstances, the defendants asked that the cause pending against them on the county attorney's information in Cedar county be continued over the term.

Following its consideration of the motion, the district court made this order, on January 30, 1932: “Counsel being unable to agree upon a future day when the case may be tried, and it appearing that defendants' counsel has been engaged in a trial of a case in Cedar County for several days and which will require several days further to conclude, the application for a continuance is sustained and the trial of this issue is postponed from Feb. 1, to the 16th day of Feb. 1932, at 9 o'clock A. M.”

When the case came on for hearing at the adjourned date, the defendants appeared without their counsel, and orally asked that the cause be continued over the term. At this time the defendant Moore stated to the district court: ““We have been depending upon France to make the arrangements for us, up until the last month he was trying to arrange it so that he would not have to get out of the case, of course, depending upon him, we don't know what else to do and he was the only one that was in the case and understood it. Now, if there is any way that we can make an arrangement with these attorneys so that we can get a waiver or anything of that kind–I don't know–in your proceedings, or anything of that kind, we are willing to do whatever is humanly possible.

The Court: Well, you can confer with the representatives of the State here.

Mr. Dallas (representing the State): I believe it was tentatively agreed last night that if the defendants would appear here today and enter their waiver to their rights to a separate trial in open court and ask for a continuance to the March term, that on condition of their express waiver we would consent to the continuance, the defendants to be tried jointly at the March term, but that is the only ground on which we feel we can consent to an arrangement of that kind. * * *

The Court: Well, if it is tried this term, the jury are here waiting for this case, there is nothing else for the jury at this term of court that I am aware of, and it is up to you men to say whether you folks can agree, and if you can come to some understanding, it will be satisfactory to the court.

Mr. Lenker (the defendant): As far, Your Honor, Judge as I am concerned, an arrangement of that kind, a waiver, would suit me, I have no objections to that that I know of, of course, we like very much to have our attorney that understands the case in the case; I presume in my estimation, it would take ten days or better before we could get a new attorney in the case, anyway that is satisfactory, and it seems to me if we can make an arrangement with the State or prosecution it would suit me all right. I would prefer a separate trial, but if we cannot do any better, we will have to do that.

The Court: We cannot compel you to agree to this.” (Italics supplied.)

Whereupon both defendants agreed that, if a continuance were granted to the March term, they would waive their rights to separate trials. After the agreement, the county attorney and the defendants entered into a written stipulation under which the cause was continued to the March term, and the defendants expressly waived their rights to separate trials. Accordingly, the district court continued the cause to the March term. We said in State v. Levich, 174 Iowa, 688, on page 690, 156 N. W. 824, 825: “The statute provides that defendant shall, if he demands it, upon entering his plea, be entitled to three days in which to prepare for trial. Aside from this, there is no statutory provision that gives to a defendant any particular time in which to prepare for trial. The rule is that it is so much within the discretion of the trial court that its determination will not be disturbed unless it is clearly shown that there was an abuse of discretion.” To the same effect see State v. Burch, 195 Iowa, 427, 192 N. W. 287, 31 A. L. R. 198;State v. Twine, 211 Iowa, 450, 233 N. W. 476;State v. Arnold, 12 Iowa, 479;State v. Weems, 96 Iowa, 426, 65 N. W. 387.

Under the facts in the case at bar, it is apparent that the district court continued the cause over the term as requested by the defendants. Although the continuance was not granted until the defendants reached an agreement with the attorneys for the state, yet a continuance was finally procured by the defendants. Before the defendants...