State v. Saling, No. 30408.

• Court: United States State Supreme Court of Iowa
• Writing for the Court: SALINGER
• Citation: 159 N.W. 255,177 Iowa 552
• Decision Date: 28 September 1916
• Docket Number: No. 30408.
• Parties: STATE v. SALING.

177 Iowa 552
159 N.W. 255

STATE
v.
SALING.

No. 30408.

Supreme Court of Iowa.

Sept. 28, 1916.

Appeal from District Court, Union County; H. K. Evans, Judge.

Conviction on charge of conspiracy to commit arson. Defendant Saling appeals. Reversed.

[159 N.W. 255]

Temple & Temple, of Osceola, and S. R. Allen, of Creston, for appellant.

Geo. Cosson, Atty. Gen., for the State.

SALINGER, J.

I. It is in dispute whether one Tracy, an assistant to the fire marshal, used color of his office to induce or compel defendant to make statements to him tending to connect defendant with the fire at Cromwell. Tracy was before the grand jury, and, so far as appears, as a witness. This does not base a complaint that the court erred in refusing to set aside the indictment.

[1] II. To support an allegation in motion for new trial that the verdict is the result of passion and prejudice, affidavit was made, which is, in effect, an argument why the verdict should be held to have been so induced. The following are items: (1) The verdict is due to passion and prejudice because defendant, under advice of counsel, did not become a witness, which fact unjustly created a prejudice in the minds of the jury. (2) Circumstances relied upon by the state to establish guilt were not convincing, and failed to convince the audience outside of the jury box, but, upon the other hand, convinced the public generally that defendant was innocent of the crime charged, as he is informed and verily believes, wherefore he feels justified in averring that the jury must have been influenced by passion and prejudice. (3) Defendant's counsel were compelled, in order to preserve the questions of law as to the admissibility of certain evidence concerning the Cromwell fire, to make a great many objections to evidence which were all overruled, which caused the jury to believe that defendant was relying on a purely technical defense. (4) Affiant avers under oath that in fact he is entirely innocent of the crime charged, and that, he, therefore, believes the jury must have been influenced by passion and prejudice. A sworn argument is no aid to such an averment in motion for new trial. Such an argument as this is ineffective anywhere.

[2] III. Appellant takes the view that by reason of the provisions of Code, § 5462, it becomes immaterial what record the appellant made below. For illustration, that we should reverse for giving instructions, though they were not excepted to; reverse for receiving testimony or failure to withdraw issues when no objection was made. It has been held that a new trial may be granted in an extreme case where utter incompetency of counsel prevented the defendant from having a fair trial. We have here no such case. At most, the counsel who appeared for the defendant in the trial below, and who do not appear for him on this appeal, were perhaps not as diligent in making objections

[159 N.W. 256]

and the like as they might well have been. But there is nothing in this record to relieve the defendant from respondeat superior, and from being bound by the acts of his agent. There is something more than the defendant to consider. It would be subversive of all orderly procedure, and utterly unfair to trial courts, if they may be reversed for doing what was, in effect, stipulated might be done. Be that as it may, there is certainly nothing in said statute which excuses the counsel for appellant from presenting his case here as the rules require. We know of no reason why we should consider assignments without brief which declare that it was error to overrule motion in arrest of judgment; that it was error to refuse defendant the right to cross-examine the witness of the state “as shown by the record”; that the court erred “in admitting testimony over objection of defendant as shown by the record.” The statute does not demand of us that we dispense with salutary rules of procedure where appellant is attempting to proceed under them, nor that we shall substitute ourselves for trial counsel. See State v. O'Donnell, 157 N. W. 872, 873.

[3] There are, however, assignments which, though not strictly in conformity to rule, do sufficiently present whether the verdict has sufficient support in evidence, or whether it is the result of passion and prejudice, and contrary to the evidence. The state asserts that as this is wholly a fact question, we cannot pass upon it. The appellant is of opinion that this has been the rule, but insists we should not follow it. There are general words in some of our opinions that give color to the contention of the state, and to the concession of the defendant. But, after all, no generalizing will quite meet all situations on appeal in criminal cases. We began long ago to adhere to said general rule, and also to hold that, notwithstanding it, we would interfere in criminal convictions. We hold in State v. Olds, 106 Iowa, 110, 76 N. W. 644, that we will not readily set aside the verdict in criminal cases. To be sure, we say in State v. Falconer, 70 Iowa, 416, 30 N. W. 655, that the verdict will not be interfered with when there is a clear conflict in the evidence. But we have never departed from the rule that we will, on appeal, interfere more readily in a criminal case on the ground that the verdict is contrary to the weight of the evidence. State v. Tomlinson, 11 Iowa, 401. A verdict will not be supported if it is against the clear weight of the evidence. State v. Pilkington, 92 Iowa, 92, 60 N. W. 502. Though proceeding carefully and cautiously, such a verdict will not be supported. State v. Reinheimer, 109 Iowa, 624, 80 N. W. 669. When a conviction is clearly contrary to the weight of evidence, the Supreme Court should set it aside on appeal. State v. Woolsey, 30 Iowa, 251. In State v. O'Donnell, 157 N. W. 870, we reverse a conviction of murder in the first degree because we find the evidence insufficient to sustain a conviction in that degree. In State v. Nolan, 92 Iowa, 491, 61 N. W. 181, approved in the O'Donnell Case, we reverse because we find there was not sufficient evidence of premeditation to sustain a verdict of murder in the first degree. And see State v. Teale, 162 Iowa, 451, 142 N. W. 235. It will no more do to make the verdict of a jury conclusive in a criminal conviction of a grave felony than it would do to try criminal cases de novo. That neither is permissible does not, in the least, affect either our duty or our power to interfere with the verdict of a jury in a case where such interference is proper.

IV. The appellant complains of the overruling of a motion to direct verdict at the close of the evidence for the state, and the state responds that that action was not erroneous. We are unable to find that a motion to direct was made at any time. But, as said, we do have the question whether this verdict has sufficient support in the evidence or is the result of passion and prejudice. The essence of the charge as to which the proof is challenged is that defendant Saling and one Madden and one Emerson feloniously conspired to burn a dwelling house and its contents belonging to Saling and situated in Creston, a dwelling house and its contents belonging to Madden and situated in Cromwell, and a dwelling house in Corning, with intent to burn its contents, which were the property of Emerson, and that the conspiracy was for the purpose of injuring certain insurers of said property. It is charged, further, that as a result and a consummation of said conspiracy defendants did willfully, etc., set fire to and burn all said dwelling houses and their contents, with the purpose and intent of injuring said insurers, contrary to and in violation of law. The state relies upon the alleged overt acts for proof of the alleged conspiracy. That is to say, it does not claim there is direct evidence of illegal confederation, but insists the conspiracy charged has enough evidence in support to sustain the verdict because there is enough evidence to make it a fair jury question whether the defendants did or did not concertedly burn, or attempt to burn, said properties, with said intent. If there be no sufficient evidence that either of the three attempted to or did set fire to either of said items of property, then on the trial theory of this case there is not sufficient evidence that they conspired to do the charged burning. So, if the burning attempted or done is not sufficiently shown to have been on concerted action. The inquiry then resolves into, What is the proof that either one or more of the three or all three concertedly attempted to burn, or did burn, either or all of said properties?

V. The record fairly tends to establish that Saling, a dealer in secondhand goods, sold to Madden a line of goods that could be

[159 N.W. 257]

used in household or hotel keeping, and that he made out a list and agreed on a price, with delivery made at Cromwell. Saling did not have all the goods desired, and to complete delivery obtained some in addition to those first listed. The goods were transported to Cromwell from Creston by dray loads. They were put into the building in Cromwell probably a week or ten days before August 1, 1911, when a fire in that building occurred.

(2) There is evidence which, if believed, shows that between 7 and half past 7 in the evening, about 11:30 of which the fire in...