State v. Wegener

• Decision Date: 22 May 1917
• Docket Number: 31275
• Citation: 162 N.W. 1040,180 Iowa 102
• Parties: STATE OF IOWA, Appellee, v. ED WEGENER, Appellant
• Court: Iowa Supreme Court

162 N.W. 1040

180 Iowa 102

STATE OF IOWA, Appellee, v. ED WEGENER, Appellant

No. 31275

Supreme Court of Iowa, Des Moines

May 22, 1917

Appeal from Polk District Court.--CHAS. A. DUDLEY, Judge.

DEFENDANT was indicted for robbery, convicted, and appeals.

Reversed.

Cummins Hume & Bradshaw, Lester L. Thompson and Frank T. Jensen, for appellant.

George A. Wilson, County Attorney, and Earl C. Mills, for appellee.

GAYNOR C. J. LADD, SALINGER and STEVENS, JJ., concur. EVANS, J WEAVER and PRESTON, JJ., (dissenting).

OPINION

GAYNOR, C. J.

Defendant was accused of the crime of robbery, alleged in the indictment to have been committed as follows: On the 9th day of October, 1914, the defendant, armed with a revolver, assaulted one Charles Ashworth; put him in fear of his life, and feloniously and forcibly took from him $ 20 in money and one check in the value of $ 5,000, all being the property of the said Ashworth. The defendant pleaded not guilty, and also tendered an issue as to his sanity at the time the act was alleged to have been committed by him. Upon a trial to a jury, the defendant was convicted and sentenced to the penitentiary. From this conviction he appeals. The defendant's complaint may be divided into three parts:

1. Error committed by the court in its instructions to the jury.

2. Misconduct of the county attorney in argument to the jury.

3. Misconduct of one of the jury prejudicial to the defendant's right.

We will take these complaints in their reverse order. Before considering this complaint, it is necessary that we place in the record somewhat of the situation confronting the jury at the time they were deliberating. Defendant Wegener was 42 years of age; lived in the town of Valley Junction with his wife and children; had lived there for 14 years; had amassed a fortune estimated at $ 75,000; had been engaged in hotel, saloon and coal business; all his property was invested in the town of Valley Junction. He had an income at the time estimated at about $ 650 a month; was not financially embarrassed. He had been something of a drinker. He was on friendly terms with the prosecuting witness, Ashworth, and had done business with him for several years. Ashworth was a wealthy man; lived a short distance outside the city of Valley Junction. The evidence tended to show that, the night before the robbery, the defendant was at home, and apparently in good spirits. On the morning of the robbery, he went to his office at the usual hour; talked with his wife about decorating his automobile for a carnival that was soon to occur, and suggested that his boys be dressed in white, that they might accompany him in the automobile. On the day of the robbery, the defendant and the prosecuting witness met in the open streets of the city, conversed together and were seen together on the streets and in public places. Defendant invited the prosecuting witness to accompany him to the rear of one of his buildings to view certain rubbish that he thought ought to be cleaned up. From there, they passed to another building, for the purpose of looking over some repairs that were thought necessary. They entered this building together. Therein they were met by one Lavelle, armed with a gun and disguised, who, by the use of the gun, compelled the prosecuting witness to hold up his hands. Conflict arose between Lavelle and the prosecuting witness, in which it seems the prosecuting witness overpowered Lavelle, and had him down on the floor. He called to defendant to come to his assistance. Defendant did not respond, but requested the prosecuting witness to let Lavelle up, saying that there were others outside and that they would be murdered if they resisted any longer. Thereafter, Ashworth was conducted upstairs to a vacant room over a pool hall. Ropes were there, and the prosecuting witness was bound hand and foot; forced to sign a check for $ 5,000 and deliver the same to Lavelle. $ 20 in money passed at the same time from the prosecutor to Lavelle. Lavelle handed the check to the defendant and requested him to have it cashed, cautioning him not to mention what had transpired. Lavelle stood guard over Ashworth during the absence of the defendant. Defendant departed with the check. The check was never presented for payment. It was later found, unendorsed, in an adjoining room with some of Lavelle's clothing. Defendant went down, whether with the check or not, and met the prosecuting witness's brother; told him a story about himself and the brother's being held up by some bandits in the alley; said that the brother had been carried away in an automobile; made no mention of the check; said that $ 1,000 was demanded of him and $ 10,000 of the brother; said that he had sent for his thousand. About this time, one of defendant's clerks brought him a roll of money, and defendant said, "I have my thousand now." There was some evidence that, after that, defendant returned and talked with Lavelle in the hall near the door where prosecuting witness was tied; told Lavelle that the brother wouldn't do a thing for them; told Lavelle that he had better kill Ashworth; dead men told no tales. When the defendant told the brother that he had his thousand dollars, he asked the brother what he was going to do about the ten thousand. After this, defendant disappeared and was gone for about a year. Lavelle was later captured, convicted, and sent to the penitentiary.

There was much evidence tending to show that there were hereditary taints of insanity in the defendant's family. The question of insanity was clearly for the jury, as was also the question of defendant's voluntary participation in the robbery. There was no question as to the conduct of Lavelle, and the defendant's presence during the whole proceeding. There was evidence of a pre-arranged scheme between Lavelle and the defendant to do what this record shows was subsequently done. That rests upon the testimony of Lavelle, and was denied by the defendant. It is true that Lavelle had done some work for the defendant, and, to a certain extent, had made the defendant's place of business his loafing place for several days prior to the occurrence of the matter complained of.

Before coming to the errors complained of, however, we might say that, in our judgment, the record presented a fair question for the jury upon the facts, and our consideration of the case will be confined to determining whether errors prejudicial to the defendant were committed in the making of the record upon which he was convicted. Every defendant charged with crime is entitled to a fair and impartial trial under the forms of law. The same power that made the law that punishes made also the law that protects. Every man is presumed to be innocent, and, upon such assumption, the law throws around him certain safeguards against conviction, not for the purpose of protecting the guilty, but for the purpose of guarding the innocent who may be wrongfully charged. The law neither denies nor affirms the guilt or innocence of the accused. That question is submitted to a jury. They are the triers of the fact. Defendant is entitled to the verdict of twelve jurors, uninfluenced by any consideration except the record, as made, upon which the cause is submitted. Every man must be confronted with his accusers and has a right to be heard in his own defense, and matters may not be considered by the jury in determining his guilt or his innocence until he has had an opportunity to be heard in his own defense. This brings us to a consideration of the assignment touching the misconduct of the jury.

It appears that, after the jury had retired to consider their verdict, one of the jurors was in great doubt as to whether or not the defendant ought not to be discharged, on the ground of insanity. The affidavit upon which the misconduct is predicated is made by one Oransky, a juror in the cause. One Foster was also a juror. The affidavit sets out the facts, is corroborated by the testimony of other jurors, and is as follows:

"That when the jury retired for deliberation, I was in some doubt as to the question of guilt or innocence, and on the first ballot, with two others, I voted not guilty. That I felt that there had been nothing shown to us which indicated that the defendant had ever been anything else than a law-abiding citizen, and I could not understand how such a man in his right mind could suddenly attempt some crime of this kind. Some time before a verdict was agreed upon and before the final ballot was taken (I am unable to say positively whether before or after the second ballot, but my best recollection is that it was before the second ballot), the juror Foster stated in substance that Wegener had stolen eighty cars of coal from the Rock Island Railroad and had bribed switchmen to switch the cars in on his private spur; that it had not been discovered until after Wegener went away, and that it had been settled out of court by the Ills. I asked Foster if he positively knew that to be a fact, and he said that there was no question about it; that he had his information from someone who knew, and I understood it was from someone who had taken part in the settlement of the coal matter. I knew then that the juror Foster was a railroad man. These statements were made very emphatically, and I was satisfied that Foster knew what he was talking about and I believed the statement to be true. I believe that one or more of the other jurors discussed this matter at that time, but I am unable to recall the exact statements made by them and who made them. There was also some discussion about the fact that Wegener's saloon was not operated in his own name, and I said that looked peculiar to me; that he evidently owned it because it was turned over to his...