State v. Rocker

• Citation: 106 N.W. 645,130 Iowa 239
• Parties: STATE v. ROCKER.
• Decision Date: 13 March 1906
• Court: United States State Supreme Court of Iowa

130 Iowa 239

106 N.W. 645

STATE

v.ROCKER.

Supreme Court of Iowa.

March 13, 1906.

Appeal from District Court, Lyon County; G. W. Wakefield, Judge.

The instant defendant was indicted jointly with Dora Rocker, for the crime of murder in the first degree. Upon his motion he was granted a separate trial. The trial resulted in his conviction, and from the judgment he appeals. Reversed.E. Y. Greenleaf, for appellant.

Chas. W. Mullan, Atty. Gen., and Lawrence De Graff, Asst. Atty. Gen., for the State.

BISHOP, J.

1. August Shroeder, the person alleged to have been murdered, came to his death on June 30, 1900. It seems that, shortly thereafter, the defendant, Charles Rocker, was arrested upon information filed before a justice of the peace, charging him with the murder of Shroeder, and upon hearing he was discharged. He then commenced a civil action for malicious prosecution against his accuser, and one of the attorneys employed by him was Simon Fisher, who thereafter, as county attorney, signed the indictment which forms the basis of the present proceeding. Before pleading, defendant filed a motion to quash the indictment, supported by affidavits, basing the same upon the facts above stated, and the further averment that, as his attorney in said civil action, Fischer became possessed of all the information defendant had respecting the death of Shroeder and the circumstances and evidence in relation thereto. The motion then represents that Fisher made use of the information and knowledge thus obtained in conducting the examination of witnesses before the grand jury, in advising the grand jury, and in preparing the indictment voted and returned against the defendant. Notwithstanding the fact that Fisher made no attempt at denial of the matters thus charged, the motion was overruled. We think it should have been sustained. It is true the charge made was in general terms, but, from the mere fact of a retainer in the civil action, it must be presumed that Fisher became possessed of every fact either known to Rocker or concerning which he had information from others respecting the death of Shroeder and the circumstances and cause thereof. The communication, it may readily be supposed, would include the facts concerning his own life and character, as such might become material in various ways. All this would naturally follow a retainer. It was necessary, in the first instance, to enable the attorney to determine whether or not a cause of action existed, and, in the next place, to prepare for a presentation of the case in court and meet any opposition presented in the way of defense. Now, by statute, it is made the duty of an attorney “to maintain inviolate the confidence, and, at any peril to himself, to preserve the secret of his client.” Not only is this true by statute, but it is true by every consideration of the ethics of the profession. And it has been held repeatedly that an attorney, who has once been made the recipient of the confidence of a client concerning a certain subject–matter, is thereafter disqualified from acting for any other party adversely interested in such subject–matter. State v. Halstead, 73 Iowa, 376, 35 N. W. 457; 4 Cyc. p. 920, and cases cited in notes.

Such, in effect, was the position in which Fisher placed himself. We need not go to the length of holding that the statements made in the motion and affidavits appearing in this record are sufficient to convict the county attorney of any willful betrayal of professional confidence, and we do not understand counsel for appellant to contend for any such holding. It is enough that the officer placed himself in position to be open to such a charge, and that we make emphatic the declaration of his disqualification to act in the prosecution of his former client, under the circumstances appearing. Being disqualified, he should have moved the appointment of a substitute, as provided for in Code, § 304. Now the statute provides that an indictment shall be set aside, on motion, when it is made to appear that “any person other than the grand jurors was present before the grand jury during the investigation of the charge, except as required or permitted by law.” Code, § 5319. While ordinarily it is the duty of the county attorney to attend upon the grand jury when required by that body (Code, § 307), there can be no warrant for his appearance when disqualified by reason of his having been attorney for the person charged in respect of the very matter under investigation. He is then a person not required or permitted by law to be before the jury. This conclusion finds support, in principle at least, in the case of State v. Will, 97 Iowa, 58, 65 N. W. 1010. There the judge holding the term went to the grand jury room and advised the jury respecting the case against the defendant under investigation, and it was held that he was a person not required or permitted to be before the jury. Accordingly, the indictment found should have been set aside. It follows, from what we have said, that the trial court erred in overruling the motion to set aside the indictment against the present defendant, and the case will be remanded, for submission to another grand jury for investigation and such action as may be determined upon by such grand jury.

2. Some matters appearing in the record before us are of such character that they must enter into and have effect to control in large measure a further trial of the charge against defendant, if such trial shall be had. In view of this, we think it proper that we take note at this time of the more important thereof.

The state introduced evidence to the effect that late in the year 1892 the defendant came to the state of Illinois; that with him was a woman whom he introduced as his wife, and that while there they lived and cohabited together as husband and wife; that a child was there born to them. It was also made to appear that defendant exhibited a certificate showing his marriage in Germany, of date October 18, 1891, to the woman he was thus living with. A document produced in court was identified by a witness as such certificate. It was then made to appear that, in the year 1893, defendant, with his family, removed from Illinois to Nobles county, Minn., where the relation of husband and wife continued down to some time in the year 1899, and that in the meantime several other children were born to them, and baptized in the family name of Rocker. That, in the fall of 1899, defendant left his wife and children in Minnesota, and came over the line into this state, where he went to work on the farm of Shroeder, the man he is alleged to have murdered. That, when arrested, defendant denied having ever married the woman with whom he had been living; he also declared that he had never been divorced from her. The evidence makes disclosure that, at the time of the trial, said woman was still living in Minnesota. In this state of the record, Dora Rocker was called as a witness for the state. Objection was made to her competency as a witness; it being asserted that she was at the time the wife of the defendant. Upon being interrogated, the proposed witness stated that formerly she had been the wife of Shroeder, the deceased; that after his death she went to Dakota with defendant, where they married, lived and cohabited as husband and wife, and had a child born to them. The objection was overruled, and the witness allowed to testify. The objection was based upon section 4606 of the Code, which provides that neither the husband or wife shall in any case be a witness against the other, etc. It seems clear to us that the preliminary evidence introduced by the state was sufficient to make out a prima facie case of former marriage on the part of defendant, the force and effect of which had not be interrupted by death or divorce. The certificate exhibited by defendant, and produced and identified in court, recites the marriage of Charles Rocker to Anna Mammen, and it was conceded that the latter name was the maiden name of the woman with whom defendant had lived and cohabited in Illinois and Minnesota, as testified to. It is not required that the fact of marriage shall be proven by record evidence. It may be proven as any other fact necessary to be determined in the case. Kilburn v. Mullen, 22 Iowa, 498;State v. Hughes, 58 Iowa, 165, 11 N. W. 706;State v. Nadal, 69 Iowa, 478, 29 N. W. 451. A certificate of marriage, the genuineness of which has been asserted by the party charged, and there being no question as to identification, is sufficient to prove the marriage. Gilman v. Sheets, 78 Iowa, 499, 43 N. W. 299; 19 Am. & Eng. Ency. p. 1199. And the law will presume a legal marriage, in the absence of other evidence, where it is shown that the parties have held themselves out to the world as husband and wife and have lived and cohabited together as such. State v. Wilson, 22 Iowa, 364;State v. Sanders, 30 Iowa, 582; 19 Am. & Eng. Ency. p. 1204. This being true, and such facts being shown upon the face of the record as it stood at the time, the subsequent marriage of defendant to the woman proposed as a witness was void; she was not his wife; and the objection to her competency was properly overruled. Code, § 3151.

As a witness on his own behalf, defendant testified that he came to this country from Germany about the year 1892; that about a year before coming he was married to a woman named Anna Decker, whom he left in Germany. He admits that there came with him to Illinois the woman named Anna Mammen, reference to whom had been made by witnesses for the state. He denies, however, that he ever introduced her as his wife, and denies having lived and cohabited with her as such while in Illinois. He denies parentage of the child there born to her. He admits that, when he left Illinois and went to Minnesota, the said woman and child...