State v. Vandewater

Decision Date15 February 1927
Docket NumberNo. 38210.,38210.
Citation203 Iowa 94,212 N.W. 339
CourtIowa Supreme Court


Appeal from District Court, Adair County; W. G. Vander Ploeg, Judge.

The defendant was indicted, tried, and convicted for the crime of larceny. Judgment was entered on the verdict in conformity to law. Defendant appeals. Affirmed.Wilson & Kellam, of Greenfield, for appellant.

John Fletcher, Atty. Gen., and Neill Garrett, Asst. Atty. Gen., for the State.


On September 10, 1926, the defendant was indicted by the grand jury of Adair county, Iowa, for the crime of larceny, in that on or about the 3d day of March, 1926, he did willfully, unlawfully, and feloniously steal, take, and carry away four spools of barbed wire and 50 steel posts, the personal property of the Royal Union Life Insurance Company of Des Moines, Iowa, said property being of the aggregate value of $45. On September 23, 1926, the jury returned a verdict of guilty, as charged, and determined the value of the stolen property at $35.

[1] On September 24, 1926, a motion for a new trial was overruled and judgment entered. This motion assigned the following reasons, to wit: (1) The verdict is contrary to the evidence and the weight of evidence. (2) The verdict is contrary to law. (3) The verdict is a result of passion and prejudice. (4) The court erred in admitting certain testimony as shown by the record over the objections of the defendants. (5) The court erred in giving instructions on its own motion and each of the instructions and all of the instructions as not containing a true statement of the law.

At the outset it is pertinent to inquire into the meaning and sufficiency of these assignments for the purpose of this appeal. Clearly they are not specific but quite general in character (Anthony v. O'Brien, 188 Iowa, 802, 175 N. W. 750), and, as bearing on the admission of evidence or on the instructions given, they may not be viewed as proper exceptions within the rule of statute or the interpretations of the statutory rule of this court. See section 11495, Code 1924. The trial court was not advised of the specific errors claimed by anything contained in the motion for new trial, unless it is the sufficiency of the evidence to sustain the verdict, which we will note presently. The trial judge should not be foreclosed in this manner. He was not afforded an opportunity to rule or correct the error which is now argued in this court. The record of the trial is lacking in proper exceptions to evidence and instructions, and the instant motion for new trial did not serve the function of an exception.

[2][3] The defendant in a criminal case waives error on appeal in every instance where a proper exception is not taken below. State v. Schwab, 112 Iowa, 666, 84 N. W. 944. Counsel in a criminal case is under obligations to make his objections as specific and definite as required in a civil case in order to present a question of law for consideration upon appeal. State v. Barr, 123 Iowa, 139, 98 N. W. 595.

[4] It is urged in argument by appellant that his present counsel were not his counsel upon the trial of this case below, and it is strenuously urged that a rank injustice has been done the defendant by reason of the fact that “both ordinary and average skill were lacking in the handling of the defense.”

It may be that defendant's counsel in the first instance were not sufficiently diligent in entering objections to certain evidence offered by the state, and it is quite apparent that no proper objections were made to the instructions given by the trial court at any stage of the proceeding. This, however, does not per se constitute the absence of a fair and impartial trial. The very question was passed upon in State v. Higgins, 192 Iowa, 201, 182 N. W. 887. It is therein said:

We cannot say that. because counsel then representing the appellant did not see fit to preserve exceptions to the instructions, or to request instructions in behalf of appellant, we can ignore the plain provisions of the statute in regard to said matters, and hold that, because of failure in this regard, the appellant has been denied a fair trial. To so declare would not only pay a premium on laxity in the trial of cases, but would amount to a complete abrogation of statutory requirements.”

None of the now claimed defects in any of the instructions were pointed out in the motion for new trial. No other exceptions were taken.

In State v. Williams, 115 Iowa, 97, 88 N. W. 194, it is said:

“The policy of the law is to give every person accused of crime a fair trial, but it is not intended to give him power to take an unfair advantage of the court.”

Turning for a moment to the case on its merits, it is observed that the defendant was charged with the larceny of fencing material which was the property of the Royal Union Life Insurance Company of Des Moines. The farm on which the fencing material was located had been leased by the insurance company to one Charles Mitchell a very short time prior to the alleged larceny. It cannot be questioned that certain fencing material was then on the farm. The material had been inspected by the tenant, especially the posts, as he had never seen any posts painted like these. It further appears that at least two trips were made by the person committing the larceny, as shortly after the asportation of the posts the tenants had placed marks of identification upon the spools of wire.

On the afternoon of March 3, 1926, Mitchell and his wife met and passed the defendant, who was driving a team of horses and wagon near the place in question. When he was first seen he was walking by the side of the team, and before Mitchell passed him the defendant got on the wagon. Later in the afternoon Mitchell drove to the farm he had just leased, and it was at that time he discovered that the steel posts had been taken. He observed the tracks and that the posts had been carried to the gate and loaded. He identified...

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