State v. Stafford
| Decision Date | 29 July 1946 |
| Docket Number | 46837. |
| Citation | 23 N.W.2d 832,237 Iowa 780 |
| Parties | STATE v. STAFFORD. |
| Court | Iowa Supreme Court |
F S. Finley and George O. Van Allen, both of Mt. Pleasant, for appellant.
John M. Rankin, Atty. Gen., Charles H. Scholz, Asst. Atty. Gen and Ben A. Galer, County Atty. of Henry County, of Mt Pleasant, for appellee.
On October 5 1945, the Grand Jury of Henry County, Iowa, indicted Ray Stafford for the crime of assault with intent to commit murder, said offense being allegedly committed in said county upon his wife, Anna Stafford, on June 18, 1945.
On October 8, 1945, defendant entered a plea of not guilty and on October 17, 1945, by written motion stated that he withdrew said plea and filed a motion to set aside the indictment. This motion was resisted by the state and was overruled and denied on the same day. The jury found the defendant guilty of the crime of assault with intent to inflict great bodily injury.
The defendant made no motion for a new trial or in arrest of judgment, or exceptions to the instructions. On November 16, 1945, the court pronounced sentence, and an appeal to this court was perfected by the defendant on November 16, 1945.
In asking for a reversal, appellant claims but two errors, which are as follows:
(1) The court erred in not sustaining defendant's motion to set aside the indictment.
(2) The court erred in allowing the state to introduce evidence of what defendant's wife said the next morning after the alleged assault, for the reason that such testimony was a narrative of the events of the night before and was no part of the res gestae.
The argument in support of these two claimed errors is set forth in less than two pages of the printed argument. There was no oral argument at the time of the submission. No authorities are cited, either in statement of errors claimed, or in argument.
When the state rested, and later, when all the evidence was offered, appellant moved for a directed verdict in his favor. Both motions were overruled. This motion in substance assails the sufficiency of the evidence to warrant the court in submitting the case to the jury.
Before considering the errors claimed, we might say that we have gone over the entire record, including the testimony of the various witnesses and are of the opinion that the verdict of the jury has ample support.
I. The first error claimed and set forth above is that the court erred in not setting aside the indictment. This motion was made after appellant had entered a plea of not guilty. Turning to such motion as made by appellant on October 17, 1945, we find the same divided into four paragraphs.
Paragraph one of such motion recites that two witnesses, Herman Mabeus and Ann Stafford, were examined before the grand jury and that their names were not endorsed on the indictment; paragraph two recites that the minutes of the testimony of such witnesses were not returned with the indictment; paragraph three seems to be somewhat contradictory. It recites that during the investigation of this charge, there were two persons before the grand jury, to wit, Herman Mabeus and Ann Stafford, who were not required or permitted by law to be present.
Appellant offered no evidence to support this claim. Neither Herman Mabeus nor Ann Stafford testified at the trial. The name of neither is endorsed upon the indictment and there are no minutes of their testimony returned with it. So far as we can ascertain from the record neither of such persons was examined before the grand jury. The record fails to show that either of these persons was tendered as a witness and there is a lack of showing that any testimony which they might have given was material. While section 13781, Code of 1939, Sec. 776.1 Code, 1946, requires the sustaining of a motion to set aside an indictment where the names of all of the witnesses examined before the grand jury are not endorsed thereon, and the minutes of the testimony given by such witnesses are not returned therewith, still we think that such legal requirement applies only where the grand jury is of the opinion that such testimony was material. In other words, the grand jury would be the judge of whether such testimony was material. State v. Hasty, 121 Iowa 507, 96 N.W. 1115; State v. Martin, 210 Iowa 376, 228 N.W. 1; State v. Davis, 230 Iowa 309, 297 N.W. 274; State v. Little, 42 Iowa 51; State v. Lewis, 96 Iowa 286, 65 N.W. 295.
The fourth paragraph of the motion charges misconduct on the part of the county attorney before the grand jury in connection with the examination of Norma Mabeus, a married daughter of appellant, and his wife. The charge is that prior to testifying before the grand jury the county attorney had secured from her a signed statement concerning what she knew as to the alleged offense and that before the grand jury said county attorney browbeat and coerced said witness into changing her version of what had taken place. The claimed statement is not in the record. The witness testified for the state and was examined and cross-examined and in neither is there any reference to such claimed misconduct. Appellant in no way interrogated the witness as to such matter and made no objection to her testimony as given at the trial. We might say in this connection that we find nothing in the record to support any claim that in the examination before the grand jury the county attorney was guilty of such claimed misconduct. The claim to that effect has no support in the record.
By reason of the foregoing, we are of the opinion that the claim of error in this particular was without merit.
II. In the foregoing, we have not considered the claim of the appellee that appellant's motion was without merit in that it was not timely. The record shows that appellant entered a plea of not guilty on October 8, 1945, and that on October 17, 1945, by motion made, it was recited that such plea was withdrawn and a motion was made to set aside the indictment. Appellee argues that the motion was not timely.
Section 776.1, Code of 1946, Sec. 13781, Code of 1939, provides that a motion to set aside an indictment is good only when made before a plea is entered by the defendant. Here, the plea was made before the motion. While appellant claims that such plea was withdrawn there is nothing in the record to show that the court made any order permitting it. The record does show that appellee resisted the motion. In the case of State v. Tyler, 122 Iowa 125, 97 N.W. 983, 985, there was before this court the action of defendant in moving to set aside the indictment after his plea. This court used the following language: 'It is enough to say that such a motion cannot be entertained after the plea has been entered by the defendant.' This court made a like finding in State v. Twine, 211 Iowa 450, 233 N.W. 476.
While there are some early cases which indicate a different rule (Norris' House v. State, 3 G. Greene 513; State v. Hale, 44 Iowa 96), the statute under which such cases were decided did not contain the provision of our present statute.
Assuming for the purpose of argument, that the motion was timely, yet under the record it was properly denied and such claim of error is without merit.
III. The second error advanced and argued was in permitting evidence as to what defendant's wife said the next morning as to what happened to her. The specific claim is that such testimony was not a part of the res gestae.
The specific charge against the appellant was that he had attempted to murder his wife on June 18, 1945. Appellant lived on a farm about 80 rods from the town of Oakland Mills, Iowa. His wife's sister, Mary Morris, lived with her husband, Rex Morris, on a farm about three miles distant. There was evidence in the record that the offense was committed in a pasture some distance from the Stafford home, along in the evening of June 18th. There is in the record evidence to indicate that appellant's wife, following the alleged assault, escaped from appellant and put in the remainder of the night wandering around in the country. She came to the home of Rex Morris about 7 a.m., June 19th, with a white sack over her head and and Indian blanket wrapped around her. She knocked at the door of the Morris home. Morris, who had known Mrs. Stafford since she was a little girl, didn't recognize her; neither did his wife, a sister of Mrs. Stafford. Her face was blackened, bruised and bleeding. Her face was beaten up and swollen--there were cuts and bruises on her arms. Her sister said: 'Well, her face was all black and her eyes were swollen so that her mouth was bleeding and she had some gashes on her face, and was all black; I didn't know who it was whether it was a gypsy or something.' Another witness, describing the condition of Mrs. Stafford, said: 'I didn't think she would live; one leg was black and blue from the hip to below the knee; she had cuts on her arms and cheeks and both eyes were black and bruised and her hair was chewed off.'
In response to a question as to what had happened she said: 'This is Ann. Ray pretty near beat me to death last night.' She said it happened, 'down to Oakland, down to the pasture there.' The objection was that the answer was hearsay and not a part of the...
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