State v. Thompson
| Decision Date | 15 November 1949 |
| Docket Number | 47293. |
| Parties | STATE v. THOMPSON. |
| Court | Iowa Supreme Court |
[Copyrighted Material Omitted]
Hansen & Wheatcraft, Des Moines, for appellant.
Robert L. Larson, Attorney General of the State of Iowa, Don Hise First Asst. Attorney General, Carroll O. Switzer, County Attorney, Polk County, Des Moines, for appellee.
In 1947 the Grand Jury of Polk County, Iowa, returned an indictment which accused William H. Cotton, Charles E. Parmenter, Roy J. Hild Ben B. Dewey and H. H. Thompson of conspiracy as defined by Section 719.1, Code 1946, I.C.A., and charged that the said named parties, unlawfully conspired with each other, and with other persons unknown to the Grand Jury, with fraudulent and malicious intent and purpose to commit a felony, by obtaining money from Polk County by means of false pretenses and with intent to defraud. H. H. Thompson, being granted a separate trial, was found guilty by a jury and he appeals.
All of appellant's codefendants were members of the Board of Supervisors of Polk County and appellant was the Director of Social Welfare and Overseer of the poor, for said County. The conspiracy charge is based upon numerous claims, filed by one Elmer G. Croft, for alleged service and parts furnished by Croft to Polk County, for cars operated by appellant's department, and which claims were approved for payment by the County, by this appellant. The manner in which these claims were approved will be discussed later herein.
In 1946 an indictment was returned by the Grand Jury of Polk County which accused Elmer G. Croft, H. H. Thompson (appellant herein), and William H. Cotton of obtaining money by false pretenses, as defined by Section 713.1, Code of 1946, I.C.A., and charged that said parties obtained from Polk County the sum of $1285.20 by means of false pretenses. In a separate trial H. H. Thompson, though indicted and tried as a principal as provided for by Section 688.1, was found not guilty by a jury, the case being submitted upon the theory that Thompson aided and abetted Croft in the commission thereof. The claim upon which this indictment was based, had been approved by Thompson in the same manner as were the claims used in the instant case.
Upon the trial of the first indictment, many of the claims used in the instant case were offered and received in evidence and the jury was instructed that if certain facts were found to be established in connection therewith, they might be considered as bearing upon the defendant's knowledge and intent in making the alleged mis-representation as to the specific claim upon which the indictment was predicated. The jury was also told that even though they found these other claims to be false, that the defendant knew them to be false and fraudulantly represented them for payment with intent to defraud, still defendant could not be convicted unless they found such was the case as to the specific claim in question.
Appellant upon arraignment in the instant case, entered a plea called 'answer and plea of Res Judicata'. Upon motion by the State, this plea was stricken from the record, and which ruling constitutes one of the assigned errors.
During the trial herein, objection was made to, and at the close thereof a motion to withdraw from the record, the various claims which had been considered by the jury in the first trial. This was under the theory of res judicata. The trial court overruled the same and this is assigned as error.
At the close of all of the testimony, Appellant moved for a directed verdict, one of the grounds being the claim of res judicata. This motion was overruled and this ruling is assigned as error.
The above three assignments of error will be considered together upon the question of res judicata.
The law is well settled that the defense of res judicata is recognized as being applicable to criminal as well as civil cases. Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180; 30 Am.Jur. Judgments, Section 178; Harris v. State, 193 Ga. 109, 17 S.E.2d 573, 147 A.L.R. 991; State v. Melia, 231 Iowa 332, 1 N.W.2d 230; Restatement of the Law, Judgments, p. 159. This defense is however vastly different than a plea of 'former jeopardy'. In the former jeopardy plea, the second prosecution must be for the same act and crime, both in law and in fact, as was the first prosecution. 15 Am.Jur., Criminal Law, Section 359; State v. Fogler, 204 Iowa 1296, 210 N.W. 580; State v. Cowman, 239 Iowa 56, 29 N.W.2d 238. In a defense of res judicata, the same may go to the entire charge or may be asserted only as to a portion of the evidence to be offered on the second trial. Restatement of the Law, Judgments, Section 68; 50 C.J.S., Judgments, § 754(a); 147 A.L.R. 197.
I. In this State all criminal procedure is statutory. Section 777.11, Code 1946, I.C.A., designates the pleas that may be entered to an indictment. Division (3) thereof says 'of a former judgment of conviction or acquittal of the offense charged.' This has always been held as meaning 'former jeopardy'. The law is well settled that a plea of former jeopardy will not be considered where the same transaction may be the basis for the second prosecution, as was the first, where the transaction represents who distinct offenses. Especially is this true where the two offenses are made so by statute, see Sections 719.1 and 713.1, Code of 1946, I.C.A. The law is also well settled, although there is some authority to the contrary, that a conviction or acquittal for a substantive offense will not sustain a plea of former jeopardy upon a trial for conspiracy to commit the act. 15 C.J.S., Conspiracy, § 47(a); Short v. United States, 4 Cir., 91 F.2d 614, 112 A.L.R. 983; State v. Brown, 95 Iowa 381, 64 N.W. 277; State v. Blackledge, 216 Iowa 199, 243 N.W. 534. Thus, while in a plea, substance rather than form is to govern, State v. Callendine, 8 Iowa 288, it is apparent that the former acquittal of appellant does not sustain a plea of former jeopardy, and the plea of res judicata not being recognized by Section 777.11, Code 1946, I.C.A., there was no error in striking the plea. State v. Caywood, 96 Iowa 367, 65 N.W. 385.
II. Appellant asserts that he is entitled to a directed verdict under the theory of res judicata, irrespective of the ruling upon the motion to strike the plea, and relies upon the recent case of Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237, 240, 92 L.Ed. 180. In that case the defendant had been tried, upon the theory of aiding and abetting and acquitted on the charge of conspiracy to defraud the United States, based upon a letter written by defendant and alleged to be false and written with intent to defraud. He was then indicted and tried for the substantive offense of uttering false invoices, based upon the identical letter. The United States Supreme Court in reversing a conviction thereon said: (Italics added.) Sound as that decision may be, upon the facts therein, it is of no assistance to appellant. While the act committed by him, which was the basis for the charge, in the former case is of the identical type as was committed by him in the instant case, it was a separate and distinct act from the ones relied upon in the present case. The determination in the first case that the act was not fraudulent goes no further than that specific act. It was not 'the core of the prosecutor's case was in each case', as was the situation in the Sealfon Case. The defense of res judicata not being available to appellant, as a defense to the entire charge, he was not entitled to a directed verdict upon this basis. The ruling of the trial court was correct.
III. Also, under the res judicata theory, it is claimed by the appellant that it was error to submit to the jury, in the instant case, the same claims that had had been considered by the jury in the former trial. As before stated, these claims were submitted solely as they might bear upon the knowledge and intent of the defendant in the doing of the specific act charged. These claims did not present, or raise, any ultimate facts to be decided by the jury in that case but were merely evidentiary facts from which the ultimate fact might be determined. The law is well settled that the theory of res judicata is confined to ultimate facts and does not extend to evidentiary ones. Restatement of the Law, Judgments, Section 68; Paulos v. Ianetakos, 46 N.Mex. 390, 129 P.2d 636, 142 A.L.R. 1243; Evergreens v. Nunan, 2 Cir., 141 F.2d 927, 152 A.L.R. 1187 and anno. The various claims were properly permitted in the record.
IV. Appellant further contends that there should have been a directed verdict because of the insufficiency of the evidence tending to connect him with the alleged crime. In short, insufficient corroboration of the accomplice Croft.
The crime charged is conspiracy, which is a combination or agreement between two or more persons to do or accomplish a criminal or unlawful act, or to do a lawful act by criminal or unlawful means. State v. Schenk, 236 Iowa 178, 18 N.W.2d 169. We are here concerned with a criminal or unlawful act. The gist of the crime of conspiracy is the unlawful agreement or combination and does not depend upon the fulfillment of the act. State v. Clemenson, 123...
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