State v. Underwood

• Decision Date: 05 February 1957
• Docket Number: No. 49005,49005
• Citation: 80 N.W.2d 730,248 Iowa 443
• Parties: STATE of Iowa, Appellee, v. Joe UNDERWOOD, Appellant.
• Court: Iowa Supreme Court

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.

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, 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 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 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, 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 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 purpose is solely to affect the weight the jury may give to the testimony offered by the witness. State v. Wehde, 226 Iowa 47, 283 N.W. 104; State v. Friend, 210 Iowa 980, 230 N.W. 425; State v. Johnson, 215 Iowa 483, 245 N.W. 728; People v. Schanda, 352 Ill. 36, 185 N.E. 183; People v. Lawson, 331 Ill. 380, 163 N.E. 149; People v. Buford, supra, 396 Ill. 158, 71 N.E.2d 340. The danger in allowing the credibility of the accused or an accomplice to be impeached by interrogations concerning prior convictions lies in tendency of juries to use the prior conviction as evidence of the fact that accused committed the specific criminal act for which he is then being tried. It must not be worded so as to implicate the defendant with the crime charged.

No instructions were demanded nor given in this case relating to impeachment by such interrogation, although under the circumstances we think they were quite necessary. State v. Johnson, 223 Iowa 962, 274 N.W. 41. As to this necessity, in People v. Granillo, 140 Cal.App. 707, 718, 36 P.2d 206, 211, we find a very good statement by the court as to possible juror reaction to evidence of this kind when it said:

'It is a matter of common experience and knowledge that once the average juror learns that the defendant has previously been convicted of a crime of the same class as that for which he is being tried, that juror will consciously or unconsciously consider and allocate to a type or class the man on trial, as distinguished from the admeasuring of his credibility as the witness on the stand; and this despite all instructions by the court, for the court may not, except by virtue of presumption,...