State v. Mutch

• Decision Date: 23 June 1934
• Docket Number: 40981
• Citation: 255 N.W. 643,218 Iowa 1176
• Parties: STATE OF IOWA, Appellee, v. ALEX MUTCH, Appellant
• Court: Iowa Supreme Court

255 N.W. 643

218 Iowa 1176

STATE OF IOWA, Appellee, v. ALEX MUTCH, Appellant

No. 40981

Supreme Court of Iowa, Des Moines

June 23, 1934

REHEARING DENIED DECEMBER 13, 1934.

Appeal from Black Hawk District Court.--GEO. W. WOOD, Judge.

The defendant was charged with and convicted of the crime of perjury and appeals.

Affirmed.

McCoy & Beecher, for appellant.

Edward L. O'Connor, Attorney General, and Walter F. Maley Assistant Attorney General, for appellee.

ANDERSON J. CLAUSSEN, C. J., and EVANS, STEVENS, DONEGAN, KINTZINGER, and MITCHELL, JJ., concur.

OPINION

ANDERSON, J.

An indictment was returned by the grand jury of Black Hawk county, Iowa, on the 16th day of September, 1930, charging the defendant-appellant, Alex Mutch, with the crime of perjury; the defendant being charged with the commission of the crime of perjury by testifying as a witness falsely upon the trial of a case entitled State of Iowa v. Jacob Luther Manly, then pending and being tried in the district court of Black Hawk county, Iowa; the testimony of the defendant charged as perjury being as follows:

"That on or about March 11th, 1930, he (Alex Mutch) cashed a check for E. C. Johnson in the amount of Three Hundred Thirty-four Dollars and Sixty Cents ($ 334.60), payable to E. C. Johnson, drawn on the Farmers Savings Bank of Bremer, Iowa, and signed A. Jahnke by J. E. O'Connor, which check was introduced in said case as States Exhibit 'A.' That said check was brought to the Bartles-Shepard Filling Station where defendant was employed, by E. C. Johnson; that the said E. C. Johnson was not the same person as Jacob Luther Manly, defendant in the case of State v. Jacob Luther Manly; that on said date he did not cash the check for the said Jacob Luther Manly, and that the said Jacob Luther Manly was not present at the time said check was cashed; that he did not know at the time of cashing said check who E. C. Johnson was."

The defendant entered a plea of not guilty to the crime charged in the indictment, and the case was tried to a jury resulting in a verdict finding the defendant guilty of the crime as charged in the indictment. A motion for a new trial was overruled and judgment was entered and sentence pronounced upon the verdict. The defendant appeals.

The first proposition relied upon by the defendant is that the court erred in overruling the defendant's motion for a new trial and in entering judgment on the verdict for the reason that the evidence was wholly insufficient to warrant the court in submitting the case to the jury, and that the court erred in so doing; that there was no evidence, except the contradictory statement contained in the affidavit of the defendant, tending to prove the guilt of the defendant.

The trial of the case of State v. Manly was had in April, 1930, and there is no controversy in the record as to the fact that the defendant, Mutch, as a witness in that case testified to facts substantially as set out in the indictment. Manly was charged with the larceny of hogs, and the check in question was claimed by the state to represent the selling price of the stolen hogs. It was, without question, cashed by the defendant, Mutch, at an oil station at which he was employed at Waterloo, Iowa, on or about March 11, 1930. On the 19th day of March, 1930, the defendant, Mutch, signed and swore to an affidavit which was in the following language:

"State of Iowa, Black Hawk County, ss.

"I. A. Mutch, being first duly sworn on oath do say that I am employed by the Bartles-Shepard Oil Company, and am working as an attendant at one of the company's service stations at South and 5th Streets in the City of Waterloo, Iowa.

"That on or about November 15th, 1929, while I was on duty at said service station, I cashed one check No. 557, in the amount of Two Hundred Twenty One Dollars and Sixty Cents ($ 221.60), drawn on the Farmers Savings Bank of Bremer, Iowa, for one Jacob Manly who represented himself as H. C. Johnson.

"That on or about March 11th, 1930, while on duty at the same Oil Service Station, I cashed one check No. 1172, in the amount of Three Hundred Thirty-four Dollars and Sixty Cents ($ 334.60), drawn on the Farmers Savings Bank of Bremer, Iowa, for Jacob Manly who represented himself to me as E. C. Johnson. I have been personally acquainted with Jacob Manly referred to herein for about twenty years.

"I have read the above statement, and it is true, and I make and sign the same of my own free will without fear or promise of reward.

"A. Mutch.

"Subscribed and sworn to before me by the said A. Mutch this 19th day of March, A. D. 1930. Emil A. Steffen, Notary Public in and for Black Hawk County, Iowa."

This affidavit was identified and introduced in evidence by the state in the trial of the present case. There were other testimony and circumstances corroborating the facts stated in this affidavit. One Parker Lichty, who operated the filling station where the defendant was employed and where the check was cashed, testified that the defendant gave him the check in question and requested him to obtain the money upon it; that he did cash it and gave the money to the defendant, Mutch; that at the time the defendant gave this witness the check to cash, he (Mutch) told the witness to get it cashed for Jacob Manly. "He told me he had received the check from Jacob Manly, and asked me to get the cash at the bank for him. I presented the check at the bank, received the money thereon and turned the same over to Alex Mutch." The record also shows that Jacob Manly was a patron and frequent visitor at the oil station where the defendant, Mutch, was employed; that when Manly was arrested for the crime of larceny he was arrested at the oil station in question; that he bought gas and oil at the station and had a tire stored in the basement. There was testimony on the part of the defendant attempting to prove that Manly was not in the vicinity of Waterloo on or about the time the check in question was cashed, but there was other testimony on the part of the state, from disinterested witnesses, to the fact that he was either in Waterloo or in that vicinity at the time the check was cashed.

The appellant contends, as we have indicated, that there is not sufficient evidence corroborating the former sworn statement of the defendant upon which to base a conviction for perjury. It is true that the general rule is that a statement of the accused directly contradicting that upon...