State v. Rowe
| Decision Date | 11 March 1947 |
| Docket Number | 46816. |
| Citation | 26 N.W.2d 422,238 Iowa 237 |
| Parties | STATE v. ROWE. |
| Court | Iowa Supreme Court |
William P. Welch and William H. Welch, both of Logan, for appellant.
John M. Rankin, Atty. Gen., Charles H. Scholz, Asst. Atty. Gen Harold Hanson, Co. Atty., of Logan, and J. J. Hess, Sp Pros., of Council Bluffs, for appellee.
Eddie Rowe of Missouri Valley, Iowa, was indicated, charged with the crime of assault with intent to commit great bodily injury. He pleaded not guilty but upon trial was convicted and was by the court sentenced to serve a period of one year in the penitentiary at Fort Madison, Iowa. His motion for a new trial was overruled and this appeal followed.
On this appeal appellant sets up various grounds--errors of the court in the admission and rejection of evidence, the giving of certain instructions, the refusal to give requested instructions, the insufficiency of the evidence and the refusal of the court to direct a verdict in his favor.
I. Before taking up the various matters wherein it is claimed the trial court erred, we think that it will be helpful to set out a brief summary of the record as throwing light upon the questions raised by this appeal.
On May 21, 1945, Eddie Rowe, aged 58, married, the father of twelve children, lived in Missouri Valley, Iowa. He had lived there most of his life and followed the trade of a painter and paperhanger. At the time he was a constable in St. John Township of Harrison County, Iowa. Cy Varnes was then justice of the peace in such township. Such justice had a civil docket which was generally kept in the common reception room of attorneys, C. W. Kellogg and Fred Egan, both of Missouri Valley. This docket contained cases entered, together with fees listed as belonging to various individuals, including justice of the peace, constable and witnesses.
On the morning of May 21, 1945, Rowe went to the office where the docket was kept. Helen Longmeyer, office secretary for C. W. Kellogg was at the office. Rowe asked to see the docket and claims that he wanted to take it to the office of Attorney Hugh Tamisiea a block or two away, for the purpose of having such attorney go over some of the fees of Rowe there entered. Rowe says he told Miss Longmeyer of his purpose and then took the docket to Tamisiea's office where it was found the next day. Miss Longmeyer claimed that she did not consent to the taking of the docket by Rowe, but does not deny that he may have told her his purpose in taking it to attorney Hugh Tamisiea's office.
As soon as Rowe had taken the docket, Miss Longmeyer telephoned to Varnes, justice of the peace, and advised him that Rowe had taken the docket. This was between nine and ten A.M. Varnes was still in bed. He at once called Howard Conaway, then chief of police of Missouri Valley, and told him Miss Longmeyer had telephoned him that Eddie Rowe had stolen his justice of the peace docket and told him to arrest Rowe. Some time later Conaway saw Rowe on the street and told Rowe that Varnes had told him that Rowe had taken Varnes' docket from the office and had ordered Conaway to arrest Rowe. Rowe asked to be shown the warrant and Conaway told him he didn't have a warrant but had an oral order from the justice of the peace to arrest him, which was sufficient and that was what Conaway intended to do and if Rowe had any complaint he would have to talk it over with the judge and if he refused to be arrested Conaway would use force. Rowe told Conaway that was what Conaway would have to do.
Rowe refused to submit to arrest under the oral order and an altercation took place between them, with both using force and both suffering various bruises and injuries. Following the altercation, Rowe was taken to the police station where both he and the officer received medical aid. Following this defendant was taken to the county jail at Logan. While the record is not clear, it is quite evident that while he was in jail a charge of insanity was filed against him. However, the record fails to show how such charge was disposed of. As a witness, Rowe offered to show that such proceeding was dismissed by the commissioners of insanity. No charge or information was ever filed against Rowe accusing him of larceny in stealing the Varnes civil docket.
The appellant has set forth and argued fifteen divisions where he claims error was committed. We have gone over all of them but think it unnecessary to discuss each in detail.
II. The incident out of which the charged crime arose came about in an attempt on the part of Chief of Police Conaway to arrest appellant by virtue of an oral order given such officer by Justice Varnes, who directed the officer to arrest appellant for having stolen his civil docket. Varnes, the justice, based his order upon information telephoned to him that appellant had come to his office and removed therefrom the civil docket.
The state concedes that officer Conaway did not have a written warrant when he sought to make the arrest; neither does it claim that the offense had been committed in the presence of said officer. The state claims in argument that the arrest was authorized by section 755.6, Code of 1946, which is as follows:
As a witness, Varnes stated that on the morning of May 21, 1945, Miss Longmeyer phoned him and said that appellant had taken his docket and that he thereupon called the chief of police and told him to pick appellant up and get his docket back home. It was in attempting to carry out this oral order that the alleged crime was committed.
III. The first point argued by the appellant relates to the action of the court in failing to sustain his challenge to the juror, Emory Totten, a member of the jury panel. Upon examination the juror stated that he was a police officer in Missouri Valley; that he worked under Chief of Police Conaway; and that prior to that time he had discussed the evidence with Conaway and Justice of Peace, Varnes. The juror was challenged for cause which challenge was overruled.
The record shows that this juror was excluded by a peremptory challenge by appellant; also, that appellant exercised all of his peremptory challenges. We think that the trial court might properly have sustained appellant's challenge for cause. Section 779.5, Code of 1946, (Sec. 13830, Code of 1939) sets forth the grounds for challenge for cause. Subsection 5 is as follows: 'Standing in the relation of * * * master and servant * * *.'
While the relation of master and servant technically speaking may not have existed between Totten and Conaway, yet such was the effect of such relationship. Conaway was the superior of Totten. Likewise, he was the prosecuting witness. The chief was in control and necessarily gave orders and directions to Totten. We would not reverse on this point alone. We suggest, however, that where reasonable doubts arise as to the competency of a juror, such juror should be excused.
IV. Appellant claims as error the action of the court in restricting and limiting him in the cross-examination of the witness, Conaway, on matters which he claimed would affect the credibility and good faith of said witness. The cause of the altercation between appellant and Chief of Police Conaway has heretofore been set out and we will not repeat.
At the trial of the case involved herein, appellant sought by cross-examination to show that Conaway entertained a feeling of ill-will and hostility toward the appellant. Upon objection of the state such testimony was excluded. Thereupon, counsel for the appellant made the following offer, dictating the same into the record:
The court sustained an objection that the evidence offered was not cross-examination. We hold that cross-examination along the line of that offered should have been permitted as bearing on the interest and activities of witness, Conaway, and we think that the court erred in so ruling. It is a well-established rule of law that in a criminal case the ill-will or hostility of a witness testifying against one charged with the commission of a crime may be shown and that it is proper to do so by cross-examination. Such evidence may be considered by the jury in testing the credibility of such witness. Nolan v. Glynn, 163 Iowa 146, 142 N.W. 1029, Ann.Cas.1916C, 559; State v. Christy, 198 Iowa 1302, 201 N.W. 42; State v. Seery 129 Iowa 259, 105 N.W. 511; State v. Leftwich, 216 Iowa 1226, 250 N.W. 489; Jones Ev., 3d Ed., Chap. 21, p. 1302, Sec. 829; Wharton Crim. Ev., 11th...
To continue reading
Request your trial
-
State v. Rowe, 46816.
...238 Iowa 23726 N.W.2d 422STATEv.ROWE.No. 46816.Supreme Court of Iowa.March 11, Appeal from District Court, Harrison County; Vernon Johnson, Judge. The defendant was charged with the crime of assault with intent to commit great bodily injury. From a verdict of guilty and judgment thereon, he......