State v. Post, No. 50824

CourtUnited States State Supreme Court of Iowa
Writing for the CourtLARSON
Citation255 Iowa 573,123 N.W.2d 11
PartiesSTATE of Iowa, Appellee, v. Raymond Louis POST, Appellant.
Docket NumberNo. 50824
Decision Date16 July 1963

Page 11

123 N.W.2d 11
255 Iowa 573
STATE of Iowa, Appellee,
v.
Raymond Louis POST, Appellant.
No. 50824.
Supreme Court of Iowa.
July 16, 1963.
Rehearing Denied Sept. 17, 1963.

[255 Iowa 576]

Page 13

Joseph Z. Marks, Des Moines, for appellant.

Evan A. Hultman, Atty. Gen., John H. Allen, Asst. Atty. Gen., Martin D. Lair, County Atty., and Edward N. Wehr, Asst. County Atty., for appellee.

LARSON, Justice.

On April 30, 1962, the defendant Raymond Louis Post was charged with the crime of robbery with aggravation in violation of section 711.2, Code of Iowa, 1962, I.C.A., and with being an habitual criminal in violation of section 747.5, Code of Iowa, 1962, I.C.A., was tried and convicted by jury on May 24, 1962, and on June 4, 1962, judgment was entered and he was sentenced to imprisonment at the State Penitentiary for a term not to exceed twenty-five years. His appeal to us was perfected on June 25, 1962.

It is contended the court erred in permitting certain clothing and evidence connected therewith to be considered by the jury, that it erred in failing to properly instruct with regard to circumstantial evidence, and that it erred in submitting an instruction regarding the defense of alibi. We find no reversible error.

The State's evidence showed that on the 23rd day of February, 1962, at approximately 2:30 P.M., a man armed with a revolver walked into Bert's Tavern at 1238 West Fourth Street in Davenport, Iowa, ordered a patron to bolt the door to an adjoining restaurant, and informed everyone at the bar that it was a [255 Iowa 577] holdup. This man, who looked to be about 37 years of age, wore a blue cap with ear flaps, dark glasses, a blue denim jacket, appeared to be about 5'7"'' tall, and weighed about 165 pounds. He ordered all the patrons to face the wall with their hands behind them, went to the center of the bar and forced the proprietor Alberta Larsen to aid him in placing the cash register money and the check cashing money from another box into a paper sack.

Page 14

Approximately $1,500.00 in all was taken by the bandit. After ordering everyone, except the owner, to lie on the floor, he left by the back entrance. Police were called about 2:35 P.M. and, as their patrol car neared the tavern, they found a shirt and jacket in the street. In the pocket of the jacket was a pair of dark sunglasses and a plain white book of matches. These items were taken to the tavern, where they were identified by the patrons as those worn by the bandit. Their description of the gunman was put out over the air, together with a communication from the desk sergeant that Raymond Louis Post, the defendant, was the man wanted. At approximately 3:40 P.M. two policeman observed defendant leaving another west end tavern with two other men, and he and his companions were followed, arrested, and taken to the police headquarters. Within the hour the defendant was placed in a lineup with four other men of approximately the same height and weight, and each was required to read phrases made up of words used by the bandit in the tavern robbery. In that and two later lineups, the defendant and four other men were viewed by the tavern owner and the patrons individually. In the first one, viewed by the owner and six patrons, the defendant was allowed to wear his own clothing. When all of them identified the appellant as to stature and voice, and one positively identified him as the robber, he was booked. On request, he voluntarily surrendered his clothing and other personal belongings, including a plain white book of matches, and was provided a white coverall suit which he wore at the successive lineups. Other patrons identified him thereafter as to stature and voice with 'no dissimilarities'.

Appellant was charged with the crime of robbery with aggravation and by telephone obtained an Illinois counsel, who [255 Iowa 578] appeared with him when he was taken before a magistrate the morning following the robbery. The magistrate advised them of the charge against defendant and also advised the accused of his constitutional rights. A formal hearing was set for February 28, 1962, and held on that date.

Defendant denied he voluntarily surrendered his clothing and personal effects or agreed to the taking of samples of his hair, and denied he held up Bert's Tavern as charged. He testified he was at that time a patron in Debbie's Tap, a considerable distance from the scene of the crime.

Defendant's clothing and a book of matches, together with the items found on the street near the scene of the crime, were sent to the laboratories of the Federal Bureau of Investigation in Washington, D. C., where tests were conducted thereon.

On the trial F.B.I agents testified that identical fabric fibers and like dyed rabbit hairs were found on the clothing taken from appellant and on the item of clothing found near the scene of the crime, that matching paint particles such as used on juke boxes and other such fixtures were found on the clothing worn by the defendant and the clothing identified as articles worn by the bandit. They testified the matchbook found in the robber's clothing and the book found in defendant's pocket were stapled on the same machine, and both were manufactured by the same party.

I. A person duly accused of a crime is rightfully entitled to one, but only one, fair trial. Failure of defendant to reasonably exercise his procedural rights in his trial necessarily limits the grounds the appellate court will consider in a claim that he failed to receive a fair trial. Section 780.4, Code of Iowa, 1962, I.C.A.

When the defendant, for whatever reason, fails to preserve his alleged errors in proceedings before the district court, it must sufficiently appear from the whole record that he failed to receive a fair trial, had incompetent counsel, or that in the interest of justice he should be granted a new trial. The burden to so show is upon him. His present counsel, the third in this matter, admits, as he must, that errors relating

Page 15

to the instructions of which he now complains were not at any time called to [255 Iowa 579] the attention of the trial court, and that the grounds for the rejection of certain evidence urged below are not those urged here. No exceptions to the instructions were taken at the time of the trial. No complaint as to them appears in his motion for a new trial.

Counsel does not deny that in matters of procedure he is and should be bound by the discretions and judgment exercised by his predecessors in the former trial. However, he now asks us to review the whole record, to consider the errors assigned, timely or not, and grant defendant a new trial in the interest of fairness to the accused. We are well aware of the provisions of section 793.18 of the Code, I.C.A., and in such cases as this we generally do examine the whole record without regard to technical errors or defects which do not affect the substantial rights of the parties. After a careful examination of the submitted transcript, as well as the record, we are not convinced they disclose any substantial or reversible error.

The extent of our duty in this regard and the meaning of section 793.18 we fully discussed in the recent cases of State v. Kramer, 252 Iowa 916, 918, 109 N.W.2d 18, and State v. Pullen, 252 Iowa 1324, 1327, 110 N.W.2d 328, where we were also asked to consider errors assigned 'in the interest of fairness to the accused.' Although mindful of the provisions of section 780.4, Code of Iowa 1962, I.C.A., which provides that the provisions relating to the manner of trial of civil actions also applies to the trial of criminal actions (State v. Miller, Iowa, 117 N.W.2d 447, 456), it is true we have stated that if upon an examination of the record under section 793.18 we are convinced it shows that a fair trial was not had, we will not hesitate to reverse. State v. Cusick, 248 Iowa 1168, 1170, 84 N.W.2d 554, 555; State v. Martin, 243 Iowa 1323, 1327, 55 N.W.2d 258, 260, 34 A.L.R.2d 904. That is a good...

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55 practice notes
  • State v. Shephard, No. 50987
    • United States
    • United States State Supreme Court of Iowa
    • November 12, 1963
    ...husband of the defendant consented to the search. It is well settled that one may freely consent to a search. State v. Post (1963) Iowa, 123 N.W.2d 11, 16; Foley v. Utterback, 196 Iowa 956, 195 N.W. 721. We must determine first, whether the facts in the instant case support a finding that t......
  • State v. Kilby, No. 19-0734
    • United States
    • United States State Supreme Court of Iowa
    • June 18, 2021
    ...when he has reasonable grounds for belief that a [crime] has been committed and that the person before him committed it." State v. Post, 255 Iowa 573, 582, 123 N.W.2d 11, 16-17 (1963). Equally well settled in this state is a peace officer's authority to conduct a warrantless search of the p......
  • Stump v. Bennett, No. 18920.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 16, 1968
    ...the Iowa Supreme Court subsequent to the Stump case4 expressed doubt about future applications 398 F.2d 115 of the rule. State v. Post, 255 Iowa 573, 123 N.W.2d 11, 18 (1963). But neither polling other states' positions nor comparing Iowa law with federal procedure is a conclusive ground fo......
  • Golliher v. United States, No. 18069
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 30, 1966
    ...303, 55 N.W. 2d 384 (1952); Sheppard v. State, 394 S.W.2d 624 (Ark.1965); People v. Shaw, Cal.App., 47 Cal.Rptr. 96 (1965); State v. Post, 255 Iowa 573, 123 N.W.2d 11 (1963). Because of the reasons stated above, we feel it is imperative that we follow this long list of authority. It is our ......
  • Request a trial to view additional results
55 cases
  • State v. Shephard, No. 50987
    • United States
    • United States State Supreme Court of Iowa
    • November 12, 1963
    ...husband of the defendant consented to the search. It is well settled that one may freely consent to a search. State v. Post (1963) Iowa, 123 N.W.2d 11, 16; Foley v. Utterback, 196 Iowa 956, 195 N.W. 721. We must determine first, whether the facts in the instant case support a finding that t......
  • State v. Kilby, No. 19-0734
    • United States
    • United States State Supreme Court of Iowa
    • June 18, 2021
    ...when he has reasonable grounds for belief that a [crime] has been committed and that the person before him committed it." State v. Post, 255 Iowa 573, 582, 123 N.W.2d 11, 16-17 (1963). Equally well settled in this state is a peace officer's authority to conduct a warrantless search of the p......
  • Stump v. Bennett, No. 18920.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 16, 1968
    ...the Iowa Supreme Court subsequent to the Stump case4 expressed doubt about future applications 398 F.2d 115 of the rule. State v. Post, 255 Iowa 573, 123 N.W.2d 11, 18 (1963). But neither polling other states' positions nor comparing Iowa law with federal procedure is a conclusive ground fo......
  • Golliher v. United States, No. 18069
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 30, 1966
    ...303, 55 N.W. 2d 384 (1952); Sheppard v. State, 394 S.W.2d 624 (Ark.1965); People v. Shaw, Cal.App., 47 Cal.Rptr. 96 (1965); State v. Post, 255 Iowa 573, 123 N.W.2d 11 (1963). Because of the reasons stated above, we feel it is imperative that we follow this long list of authority. It is our ......
  • Request a trial to view additional results

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