State v. Shipp, 54098

Decision Date11 March 1971
Docket NumberNo. 54098,54098
Citation184 N.W.2d 679
PartiesSTATE of Iowa, Appellee, v. Herman Otis SHIPP, Appellant.
CourtIowa Supreme Court

Lucier, Wensel, Swanson, Judkins & Perkins, by Gary H. Swanson, Des Moines, for appellant.

Richard Turner, Atty. Gen., G. Douglas Essy, Asst. Atty. Gen., and Ray A. Fenton, Polk County Atty., for appellee.

STUART, Justice.

Defendant was indicted, tried and convicted of the crime of robbery with aggravation in violation of sections 711.1 and 711.2, Code 1966.

In support of his alibi defense, defendant took the stand and testified he spent the entire night in his girlfriend's home. On cross-examination he was asked if he had ever been convicted of a felony. His counsel's objection that the question was irrelevant, incompetent and immaterial and without proper foundation was overruled. Defendant answered in the affirmative. The only errors urged on appeal relate to the admission of this evidence and the giving of the instruction limiting its purpose to the determination of the credibility of the witness.

I. Section 622.17, Code 1966 provides: 'A witness may be interrogated as to his previous conviction for a felony. * * *'

When a defendant takes the stand in his own behalf, he stands on the same footing as any other witness in matters affecting his credibility and may be asked if he has been convicted of a felony for the purpose of impeachment. State v. Anderson (Iowa, 1968), 159 N.W.2d 809, 812, and citations; State v. Allnutt (1968), 261 Iowa 897, 909, 156 N.W.2d 266, 273.

The state does not have to lay a foundation to make it admissible. Its admission is authorized by the statute.

As the record does not disclose the nature of the felony or the date on which it occurred, we need not decide whether upon a proper showing the trial court can, in the exercise of its discretion, exclude such evidence as irrelevant or immaterial. We decline, as we did in State v. Anderson, supra, 159 N.W.2d at 812--813, to consider this issue until it is squarely raised by the record. See State v. Schatterman (Iowa, 1969), 171 N.W.2d 890, 896. Defendant cannot claim prejudice without such showing.

We determined in State v. Everett (Iowa, 1968), 157 N.W.2d 144, 147, that inquiry into the previous conviction of a felony did not violate defendant's constitutional rights under Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106.

II. The trial court's instruction No. 8 stated:

'The defendant has admitted that he has been convicted previously of a felony. This fact may be considered by you for a limited purpose; namely, in judging the credibility of the defendant. The fact of such conviction does not necessarily destroy or impair a witness' credibility and it does not raise a presumption that the witness has testified falsely here. It is simply one of the circumstances that you may take into consideration in weighing and judging the testimony of such witness.

'You are particularly instructed that such fact may not be...

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4 cases
  • State v. Martin
    • United States
    • Iowa Supreme Court
    • 24 Abril 1974
    ...due to the fact that related error has not, in most instances, heretofore been preserved for appellate review. See e.g., State v. Shipp, 184 N.W.2d 679, 680 (Iowa 1971); State v. Schatterman, 171 N.W.2d 890, 896 (Iowa 1969); State v. Anderson, 159 N.W.2d at We are satisfied, however, the in......
  • State v. Hackett
    • United States
    • Iowa Supreme Court
    • 19 Septiembre 1972
    ...Scarborough, 147 U.S.App.D.C. 46, 452 F.2d 1378, 1379--1380 (1971); State v. Milford, 186 N.W.2d 590, 593 (Iowa 1971); State v. Shipp, 184 N.W.2d 679, 680--681 (Iowa 1971); State v. Kelley, 161 N.W.2d 123, 124--125 (Iowa 1968); 3A Wigmore on Evidence, §§ 889--891 (Chadbourn rev.), id., §§ 9......
  • State v. Mays
    • United States
    • Iowa Supreme Court
    • 21 Febrero 1973
    ...by the jury, we conclude the instruction was appropriate and necessary.'); State v. Milford, 186 N.W.2d 590 (Iowa); State v. Shipp, 184 N.W.2d 679 (Iowa); Note, 21 Drake L.Rev. 488, Reversed. ...
  • State v. Walker, 55950
    • United States
    • Iowa Supreme Court
    • 22 Mayo 1974
    ...issue and may be open to appropriate attack. See State v. Martin, 217 N.W.2d 536 (Iowa, opinion filed April 24, 1974); State v. Shipp, 184 N.W.2d 679, 680 (Iowa 1971). And the showing of specific material testimonial error or conflict is a recognized impeaching tool. See 3A Wigmore on Evide......

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