State v. Underwood, No. 49005

CourtUnited States State Supreme Court of Iowa
Writing for the CourtLARSON
Citation80 N.W.2d 730,248 Iowa 443
PartiesSTATE of Iowa, Appellee, v. Joe UNDERWOOD, Appellant.
Decision Date05 February 1957
Docket NumberNo. 49005

Page 730

80 N.W.2d 730
248 Iowa 443
STATE of Iowa, Appellee,
v.
Joe UNDERWOOD, Appellant.
No. 49005.
Supreme Court of Iowa.
Feb. 5, 1957.

Page 731

Thomas O. Tacy, of Council Bluffs, for appellant.

Dayton Countryman, Atty. Gen., Raphael R. R. Dvorak, Dudley C. Lowry, Asst. Attys. Gen., Matt Walsh, County Atty., Council Bluffs, for appellee.

LARSON, Justice.

The defendant Joe Underwood was indicted and charged with the crime of breaking and entering the warehouse of the Younkerman Seed Co. in Council Bluffs, Iowa, during the night of November 11, 1955. He, together with Robert Reid, Jerry Porter, and two other lads, had been engaged in a beer drinking party which was broken up by police officers around midnight, and the two lads had gone home. Underwood, Reid and Porter had continued to drive about the city. After the break-in was discovered, police observed them in that locality and gave chase. Porter and the defendant got away. Reid was caught and taken to the police station, where a statement was obtained from him. The defendant was later arrested and tried before a jury, which found him guilty. He was sentence to serve ten years in the State Reformatory. In the trial the State called as its witnesses Reid and Porter, [248 Iowa 445] and it is in relation to their testimony and the county attorney's comments thereon in his final argument to the jury that defendant contends prejudicial error occurred.

The witness Reid, who appeared to be much less than cooperative, gave the following testimony on direct examination:

'Q. Were you charged with breaking and entering the Younkerman Seed Company? A. Yes.

'Mr. Tacy (defense counsel): Just a moment. That is incompetent, irrelevant, immaterial.

'The Court: Well, he has answered it. (Defendant excepts.)

'Q. Did you enter a plea to that charge?

'Mr. Tacy: Just a moment. It's incompetent, irrelevant and immaterial.

'The Court: Overruled. (Defendant excepts.)

'A. Yes.'

Defendant contends that such testimony was not admissible and, as later used, was highly prejudicial. He contends it was not admissible against him, for it was of

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no probative value in determining his guilt or innocence of the offense charged whether or not an alleged accomplice entered a plea of guilty for the same crime. We agree. It is hard to see wherein such testimony has probative value in determining the guilt or innocence of the defendant. It does not, except perhaps by an improper inference, tend to prove defendant's guilt by establishing the fact that another, although an alleged accomplice, entered a plea of guilty to the same crime. This was not an interrogation as to the witness' acts at the time in question.

I. Evidence of the plea of guilty of one alleged accomplice is not admissible to prove the guilt of another charged with and on trial for the same offense. State v. Huss, 210 Iowa 1317, 232 N.W. 692; State of Iowa v. Abley, 109 Iowa 61, 80 N.W. 225, 46 L.R.A. 862; State v. Concord, 172 Iowa 467, 154 N.W. 763; People v. Buford, 396 Ill. 158, 71 N.E.2d 340; State v. Johnson, 152 Iowa 675, 133 N.W. 115. Except for the purpose of impeachment of the witness, it is also improper to examine him as to his prior conviction of any felony. Section 622.17, Code of Iowa 1954, I.C.A. Evidence relating [248 Iowa 446] to a prior conviction of a felony is not to be considered by the jury as evidence tending to connect the defendant with the commission of the offense charged, nor for the purpose of establishing his guilt, but may be used only for the purpose of testing the credibility of the witness. State v. Johnson, supra. Any other implication is improper.

In discussing the impropriety of such implications of guilt in the case of State v. Huss, supra, 210 Iowa 1317, 1319, 232 N.W. 692, 693, we said:

'In the case at bar it is to be remembered that Brant was a coindictee with the appellant. The contention of the state was that the appellant and the witness Brant stole the chickens in question together * * *; in other words, that the entire transaction was a joint enterprise engaged in by Brant and the appellant. The cross-examination of the witness Brant was for the obvious purpose of attempting to discredit him in the eyes of the jury as a witness and to carry the insinuation and suggestion that he was engaged in the business of stealing chickens * * *. This also reflected on the appellant who was indicted with him. Such cross-examination could have had no other purpose. It cannot be said that it was without prejudice to the appellant.' The conviction was reversed, with the statement that 'in view of all of the circumstances surrounding this case, the character of the charge, and the relationship of the witness to the appellant, we think that the prosecutor exceeded the bounds of a fair and legitimate cross-examination, and that the result was necessarily prejudicial to the appellant.'

From the record before us we detect some hostility on the part of the witness Reid and his complete lack of memory concerning the statement previously given the police, which no doubt brought forth the troublesome question relating to the witness being charged in the same matter. While the record discloses some indication that the witness was not being frank or honest, it was not proper under our decisions for the state to impeach its own witness. State v. Christie, 243 Iowa 1199, 1211, 53 N.W.2d 887, 893, 54 N.W.2d 927. Also see 58 Am.Jur., Witnesses, section 792; 70 C. J., Witnesses, section 991. There can be no doubt that the first question was improper. Although the answer had been given prior to the objection, [248 Iowa 447] defense counsel should have moved to strike it from the record. Even if it was the intention of the State's counsel to attempt to impeach the credibility of this witness as to his truth and veracity, the question as to his prior conviction of a felony was not properly worded. It went far beyond the limits permitted by section 622.17, Code of Iowa 1954, I.C.A. He was not simply asked if he had been convicted of a felony, permissible under said section of the code, which provides: 'A witness may be interrogated as to his previous conviction

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for a felony. No other proof is competent, except the record thereof.' Here the reference was to involvement in the very crime now before the court.

Great care must be exercised in the use of this statutory privilege, for its...

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13 practice notes
  • State v. Stefanelli
    • United States
    • United States State Supreme Court (New Jersey)
    • January 10, 1979
    ...use in their deliberations, the potential for misuse is manifest. United States v. Harrell, supra, 436 F.2d at 614; State v. Underwood, 248 Iowa 443, 447-448, 80 N.W.2d 730, 734 (Sup.Ct.1957). This risk of misuse was aggravated here by the prosecutor's remarks during summation. The prosecut......
  • State v. Just
    • United States
    • Supreme Court of Connecticut
    • August 18, 1981
    ...S.Ct. 49, 34 L.Ed.2d 86 (1972) (limited to its facts by United States v. Franicevich, 465 F.2d 467 (5th Cir. 1972) ); State v. Underwood, 248 Iowa 443, 447-48, 80 N.W.2d 730 12 Although no proper objection to the testimony was taken, we review this claim of error in the interests of justice......
  • State v. Redding, No. 53228
    • United States
    • United States State Supreme Court of Iowa
    • July 24, 1969
    ...prior arrests in its main case? State v. Brown, 100 Iowa 50, 69 N.W. 277; State v. Eaton, 190 Iowa 212, 180 N.W. 195; State v. Underwood, 248 Iowa 443, 80 N.W.2d 730; 1 Wharton's Criminal Evidence, Twelfth Ed., section 232, page 492. 1 The majority notes this prohibition does not apply wher......
  • State v. Martin, No. 55207
    • United States
    • United States State Supreme Court of Iowa
    • April 24, 1974
    ...State v. Anderson, 159 N.W.2d 809, 812 (Iowa 1968); Gaskill v. Gahman, 255 Iowa 891, 896, 124 N.W.2d 533 (1968); State v. Underwood, 248 Iowa 443, 445--446, 80 N.W.2d 730 (1957); 41 Iowa L.Rev. 325 On the other hand this court has not heretofore held the testimonial impeachment allowable un......
  • Request a trial to view additional results
13 cases
  • State v. Stefanelli
    • United States
    • United States State Supreme Court (New Jersey)
    • January 10, 1979
    ...use in their deliberations, the potential for misuse is manifest. United States v. Harrell, supra, 436 F.2d at 614; State v. Underwood, 248 Iowa 443, 447-448, 80 N.W.2d 730, 734 (Sup.Ct.1957). This risk of misuse was aggravated here by the prosecutor's remarks during summation. The prosecut......
  • State v. Just
    • United States
    • Supreme Court of Connecticut
    • August 18, 1981
    ...S.Ct. 49, 34 L.Ed.2d 86 (1972) (limited to its facts by United States v. Franicevich, 465 F.2d 467 (5th Cir. 1972) ); State v. Underwood, 248 Iowa 443, 447-48, 80 N.W.2d 730 12 Although no proper objection to the testimony was taken, we review this claim of error in the interests of justice......
  • State v. Redding, No. 53228
    • United States
    • United States State Supreme Court of Iowa
    • July 24, 1969
    ...prior arrests in its main case? State v. Brown, 100 Iowa 50, 69 N.W. 277; State v. Eaton, 190 Iowa 212, 180 N.W. 195; State v. Underwood, 248 Iowa 443, 80 N.W.2d 730; 1 Wharton's Criminal Evidence, Twelfth Ed., section 232, page 492. 1 The majority notes this prohibition does not apply wher......
  • State v. Martin, No. 55207
    • United States
    • United States State Supreme Court of Iowa
    • April 24, 1974
    ...State v. Anderson, 159 N.W.2d 809, 812 (Iowa 1968); Gaskill v. Gahman, 255 Iowa 891, 896, 124 N.W.2d 533 (1968); State v. Underwood, 248 Iowa 443, 445--446, 80 N.W.2d 730 (1957); 41 Iowa L.Rev. 325 On the other hand this court has not heretofore held the testimonial impeachment allowable un......
  • Request a trial to view additional results

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