State v. Thompson, 50700

• Decision Date: 16 October 1962
• Docket Number: No. 50700,50700
• Parties: STATE of Iowa, Appellee, v. Dolan B. THOMPSON, Appellant.
• Court: Iowa Supreme Court

Page 514

117 N.W.2d 514

254 Iowa 331

STATE of Iowa, Appellee, v. Dolan B. THOMPSON, Appellant.

No. 50700.

Supreme Court of Iowa.

Oct. 16, 1962.

Morris & Morris, Des Moines, and Watson, Elgin & Hoyman, Indianola, for appellant.

Evan Hultman, Atty. Gen., John H. Allen, Asst. Atty. Gen., and J. W. Ritchie, County Atty., Indianola, for appellee.

THOMPSON, Justice.

On September 25, 1961, the defendant was placed on trial in the Warren District court to answer a charge of perjury lodged against him by county attorney's information. The jury returned its verdict of guilty as charged, and on October 16th next the court entered its judgment on the verdict and sentenced the defendant as provided by statute. He appeals, assigning nine errors.

I. The first three errors are related, and we shall consider each of them in this division. The first asserts that there was error in admitting into evidence the testimony of S. E. Prall, who was the presiding judge in as earlier civil action, Martin v. Thompson, in which the charged perjury of the defendant was alleged to have been committed. This action was a suit on a promissory note, and a check, known in this record as State's Exhibit 2, was introduced in evidence. The check, drawn by the defendant, which was in the amount of $500.00, bore in writing the notation 'For one yearling stud colt and mare'; and it was the contention of the defendant here, who was also a defendant in the suit on the note, that it was given to apply on the note; while the plaintiff in that suit denied it was such payment. There was evidence in the civil suit, and also in the case at bar, that the words 'and mare' were not on the check at the time it was given to the payee and by him deposited in the bank. The defendant testified in the suit on the note that the words were on the check when it was delivered to the payee. This is the fighting point in the case; and since the question of the materiality of the testimony of the defendant in the first case is not raised here, we shall not further state the facts.

It is the defendant's contention as to the first assigned error that Judge Prall should not have been permitted to testify as to the nature of the civil proceeding at which he presided, and further should not have been allowed to state his opinion that the question of the words on the check above referred to was a material issue in that case.

Here the second assignment of error becomes material. It is that the record in the civil case, consisting of the pleadings, rulings of the court, and its instructions--the court file in the case, in fact--should not have been admitted in evidence, and Judge Prall should not have been permitted to use it in testifying and to explain its contents to the jury. The record of the preceding case was proper. State v. Mutch, 218 Iowa 1176, 1181, 255 N.W. 643, 645; Underhill's Criminal Evidence, Vol. 3, Sec. 822; 41 Am.Jur., Perjury, sec. 61, pages 33, 34; 70 C.J.S. Perjury § 58, page 529. Also, parol evidence may be given by one who heard the false testimony even though a record exists. 70 C.J.S. Perjury § 58, supra; Underhill's Criminal Evidence, supra.

The third assigned error is that the court should not have admitted the testimony of Harry Nelson, the court reporter, who reported the evidence in the civil trial. The reporter read from his shorthand notes that part of the testimony of the defendant Thompson, given in the first suit, which pertained to the check Exhibit 2 and the notation written on it. This showed that the defendant testified strongly that the words 'and mare' were on the check when it was delivered to the payee. The error claimed is that Nelson was permitted to read only portions of the transcript, which were fragmentary and incomplete and quoted the defendant out of context. It is well established that the false statements of the defendant in a perjury action may be shown by the court reporter who took the testimony. 41 Am.Jur., Perjury, sec. 61, page 34; Underhill's Criminal Evidence, Vol. 3, sec. 822, pages 1852-1853; 70 C.J.S. Perjury § 58, page 529. In the latter authority it is said: '* * * such portions of the record as are necessary to show what the false testimony was may be read by the court reporter.'

The complaint that only portions of the testimony were introduced is answered by reference to the record, which in connection with the testimony of the witness Nelson shows this from defendant's counsel: 'We move to strike, Your Honor, all of the testimony from this witness which did not refer to Exhibit C (this being the designation of the check Exhibit 2 in the civil suit) for the reason that the same is prejudicial to the defendant, has no probative value, and not among the proper methods of proof of the elements of the charge.' The court sustained this motion. In conformity to this ruling, the court then requested the county attorney to refrain from questioning the witness on matters not relevant to the check.

So the defendant himself objected to other portions of the transcript which had no bearing on the alleged false testimony. He cannot now complain that the entire transcript was not offered; and indeed it seems evident that it was only that part dealing with testimony of the defendant as to the check in question that was material to the issues in the instant case.

We return to the first assigned error. As we understand it, here the defendant claims Judge Prall should not have been permitted to testify as to the nature of the civil proceeding or to express his opinion that the question of the writing on the check was a material issue therein. The defendant cites three authorities: State v. Brown, 128 Iowa 24, 102 N.W. 799, State v. Swafford, 95 Iowa 362, 67 N.W. 284, and State v. Caywood, 96 Iowa 367, 65 N.W. 385. They do not reach the point. Each holds that it is the rule in Iowa that in a prosecution for perjury the materiality of the alleged perjured statements when made is a matter of law for the court. None of them holds that opinion evidence may not be received on the question of materiality. There is, however, some slight authority for the contention. In 70 C.J.S. Perjury § 57, page 529, it is said: 'The opinion of a witness who heard the testimony is not admissible as evidence to prove its materiality or lack of materiality.' The only support for the statement cited is two early Texas cases, Foster v. State, 32 Tex.Cr. 39, 22 S.W. 21, and Washington v. State, 23 Tex.App. 336, 5 S.W. 119. Whether this rule would be followed in Iowa in view of our discussion and holding in Grismore v. Consolidated Products Co., 232 Iowa 328, 5 N.W.2d 646, in which we held that expert evidence may be received if it will aid in the decision of the issues and the witness is duly qualified to give it; that the objection that it invades the province of the trier of the issues is no longer tenable; and that the trial court has a considerable discretion in determining whether it may be permitted, we do not find it necessary to decide. We agree that the question of the materiality of the issues in the civil case was for the trial court; the records in that case were before it; the defendant does not claim that the notation on the check was not in fact material in the first case; and the trial court had the duty to decide the question as a matter of law. The entire record shows no possible inference that it was not material. We quote from 24B C.J.S. Criminal Law § 1915 (15), pages 104-105: 'Error in the admission of opinion evidence may be regarded as harmless * * * as where the opinion * * * relates to a fact which is not in dispute, or is manifest.' The trial court here instructed the jury that the testimony given by the defendant as a witness in the former trial was material evidence. In fact, the record of the civil trial shows that Judge Prall considered the issue to be a material one therein. His opinion testimony in the case at bar added little if anything to what was shown by the record in the first case, which we have held was properly admitted in evidence. Viewing the question as a matter of law, as it was the duty of the trial court to do, the materiality of the testimony given in the civil case it manifest and was not in dispute. No error appears at this point.

II. At the adjournment of the trial on the second day the court did not admonish the jury as required by sections 780.21 and 780.22 of the code, I.C.A. This coming to the court's attention shortly, an attempt was made to reconvene the jury for that purpose; but only ten jurors appeared. These were duly admonished; but the defendant thinks reversible error appears. We do not agree. A proper admonition had been given at adjournment following the first day of the trial, and evidently at least once before that, since the admonition then given reminded them of a previous one. The defendant called the court's attention to the absence of the two jurors, but made no motion for mistrial and no objection to the procedure adopted. We discussed a similar situation in State v. Jensen, 245 Iowa 1363, 1369, 1370, 66 N.W.2d 480, 483, where we said: 'Ordinarily technical defects in procedure do not call for a reversal unless it apperas they have in some way prejudiced the complaining party.' There is no showing, or attempt to show, that any prejudice resulted here. See also Finley v. United States, C.C.A. 5th Cir., 271 F.2d 777, 780, and State v. Hines, 6 Utah 2d 126, 307 P.2d 887, 889.

III. Error is predicated on the failure of the trial court to strike a statement read from the record of evidence in the civil trial by the reporter Nelson, to the effect that the defendant had given the plaintiff in that case, Martin, a check which 'bounced'. It is argued here that this 'obviously is evidence of what might be construed as a crime, namely the issuance or utterance of a false check which is a felony in the State of Iowa.' Authorities holding that other offenses may not be...