State v. Sereg

• Decision Date: 11 February 1941
• Docket Number: 45546.
• Parties: STATE v. SEREG.
• Court: Iowa Supreme Court

296 N.W. 231

229 Iowa 1105

STATE v. SEREG.

No. 45546.

Supreme Court of Iowa.

February 11, 1941

Appeal from District Court, Monroe County; Elmer K. Daugherty Judge.

Defendant was tried and convicted on a County Attorney's information charging him with operating a motor vehicle on the streets of Albia, in Monroe County, Iowa, while in an intoxicated condition. Defendant has appealed.

Affirmed.

W. E Giltner, of Albia, for appellant.

John M. Rankin, Atty. Gen., Jens Grothe, Asst. Atty. Gen., and John E. Miller, Co. Atty., of Albia, for appellee.

BLISS Justice.

Appellant asks for a reversal because of error of the court in overruling his motion for a new trial, based upon the absence, from the court and the county of trial, of the trial judge, from the time the case was submitted to the jury until after the return of the verdict. Because of this absence of the judge, the appellant asserts that he was denied the right to have the jurors receive additional instructions as requested by them.

This appeal is before us on a clerk's transcript of the record as provided for in paragraph 2 of Code, Section 13998. The trial was begun in the forenoon of December 9, 1940, and continued until the jury was instructed and retired at 4:40 o'clock in the afternoon of the following day. Judge Daugherty had presided until the jury retired. He also overruled defendant's motion for a new trial and sentenced him, on December 20, 1940, to pay a fine of $300, and in default of payment to be imprisoned in the county jail for ninety days. He is now serving this sentence. Appeal was perfected on December 23, 1940, and the cause was advanced to the January, 1941, term of this court, for submission on the 14th day of that month. It was submitted on that day. The clerk's transcript was filed with the Clerk of this court on December 26, 1940. Appellant served no notice under Rule 32 of this court. Service of such notice would have automatically continued the cause to the May term, by which time he would have served his sentence. Neither did he file an abstract. But on December 28, 1940, he served and filed his brief and argument. The State has filed no answering brief and argument, but it did file, on January 13, 1941, a motion to strike appellant's brief and argument. Without passing upon the merits of that motion or the procedural point involved, we have given full consideration to the brief and argument of appellant. And even though they were stricken, it is the duty of the court, by study and research, to decide the matter upon the law and the facts according to its best judgment.

The facts with respect to the question before us appear only in an agreed statement of the facts, signed by the respective attorneys, made a part of the record, and filed in the office of the Clerk of the district court. Since it is rather difficult to correctly summarize the statement, and that there may be no misunderstanding of its contents, we set it out verbatim, as follows:

" December 12, 1940.

State of Iowa, versus Albert Sereg

Mr Giltner: Now on this 12th day of December, 1940, in open court, Judge Elmer K. Daugherty, who heard the evidence in this cause, being present, and the State represented by the County Attorney, John E. Miller, and the defendant represented by his attorney, who is also present; it is agreed that the record may show that the Jury at about 10:00 A. M., December 11, 1940, requested of the Bailiff that they be permitted to come into court and ask for further instructions, that request being communicated to George W. Dashiell, the said Judge Elmer K. Daugherty not being present, but then in Fairfield, Iowa, holding court. Judge Dashiell said that the Jury might be permitted to come in and make known their request for instruction, and if he thought the request was a proper one he could call Judge Daugherty in regard to the matter; and the report of the Bailiff to the Jury being given that they would not be called in and given additional instructions at that time, the jurors gave an exclamation of ‘ Oh!’ ; whereupon the foreman asked if they could return a verdict and have it received.

Mr. Miller: The record may further show that counsel for the defense made objection to permitting the Jury to propound their question or request to Judge George W. Dashiell under the circumstances suggested.

Mr. Giltner: On the ground that even though Judge Daugherty should say something over the telephone, still a Judge who had not sat in the trial of the case could not be qualified to give an additional instruction.

Mr. Miller: I would like to add to that statement that the absence of Judge Daugherty was due to the physical inability of Judge Dashiell to attend his regular term of court at Fairfield, and that it was the understanding if necessary he, Judge Daugherty, be called.

Mr. Giltner: Judge Dashiell being one of the Judges of this Second Judicial District, and duly on the same day received at 1:50 P. M. the verdict of the jury in this cause.

Mr. Miller: The record should further show that it was arranged and understood by the parties that when a verdict was reached Judge Dashiell was to receive the same.

Dec. 20, 1940. Judge Daugherty states in ruling on Motion for new trial that he could have been here within one hour if he had been called."

It may be reasonably found from this statement that Judge Dashiell, whose home is at Albia, the place of the trial, was not in the best of health, and that it had been arranged between him and Judge Daugherty, who was presiding at the trial, that in order to expedite the work in the judicial district, Judge Daugherty would, upon the retirement of the jury, go to Fairfield, about fifty miles away, in the second county east, and in the same judicial district, to hold court on the following day, and that Judge Dashiell would remain at hand to receive the verdict when returned by the jury. It also appears without question that at or about the time the jury retired, on December 10, 1940, it was agreed in a writing signed by the County Attorney and the defendant's attorney, that should the jury reach a verdict after 5 o'clock that afternoon and before 9 o'clock the next morning, it might seal it and give it to the bailiff to be retained by him until he returned it to the jury upon their reassembling the next morning at 9 o'clock for return of the verdict in court. The attorney for the defendant states in argument, that this is the only agreement which he made, and that he had no part in the arrangement between the two judges respecting Judge Daugherty's holding court at Fairfield, and the receiving of the verdict by Judge Dashiell, and that he was neither asked to agree, nor given an opportunity to disagree, and that the first he knew of such an arrangement was just after the jury had retired to their room to deliberate upon the verdict, when Judge Daugherty announced to the attorneys on both sides, the arrangement which he had made with Judge Dashiell. It may well be that the arrangement was first made by the two judges without consultation with the attorneys, but it is apparent from the statement of defendant's attorney that he had an opportunity to object when Judge Daugherty made the announcement, and that he made no objection. We say that he had an opportunity to object because it is not apparent to us that anything or anybody prevented him from making any objection. It also appears from the statement of Mr. Miller, the County Attorney, " that it was the understanding if necessary he, Judge Daugherty, be called." Whether this " understanding" was between the judges, only, or between Judge Daugherty and the attorneys, is not clear, but Mr. Miller further stated: " The record should further show that it was arranged and understood by the parties that when a verdict was reached Judge Dashiell was to receive the same." (Italics ours.) There was no objection to, or correction of this statement by defendant's attorney. It appears to us that this last statement clearly imports the intended absence of Judge Daugherty, and that the attorneys agreed that because of his absence Judge Dashiell was to receive the verdict. Under the record, it is our conclusion that it clearly appears the defendant and his attorney knew that Judge Daugherty was going to be absent from the place of holding the trial during a part or all of the time the jury were deliberating, and Judge Dashiell was going to take his place and receive the verdict, and they consented to such an agreement.

The propositions in appellant's assignment of error may be condensed into the single statement that because of the absence of Judge Daugherty, as stated herein, there was no compliance with Section 13911 of the 1939 Code of Iowa, and the appellant was thereby deprived of a substantial right and did not receive a fair trial, and is entitled to a new trial.

Having reached a conclusion respecting the fact of consent or waiver, excepting as to the matter of the objection of defendant's attorney to the return of the jury for further instruction, to which we will give attention hereinafter, we will discuss the effect of that consent or waiver, and the principles and authorities and the constitutional and statutory provisions bearing thereon. The reports of the courts, both state and federal, including the United States Supreme Court, contain numerous decisions upon similar questions and other closely akin thereto. There has been a lack of harmony, not only among the courts, but among judges of the same court. This inability of able courts and distinguished judges to see alike is not at all surprising when the nature and the importance of the matters involved is considered.

Code Section 13911, provides: " Report for information. After the...