State v. Wickett

• Decision Date: 21 October 1941
• Docket Number: 45705.
• Parties: STATE v. WICKETT.
• Court: Iowa Supreme Court

300 N.W. 268

230 Iowa 1182

STATE v. WICKETT.

No. 45705.

Supreme Court of Iowa.

October 21, 1941

Appeal from District Court, Warren County; J. R. Leary, Judge.

A criminal action in which the defendant was charged, in count one of the indictment, with forging the name, " R Myers," on a Standard Oil Company sales-ticket purporting to show the purchase, on credit, of merchandise by Myers, and, in count two, with uttering said instrument. At the close of the State's evidence, a verdict of " not guilty" was returned by the jury, on both counts, at the direction of the court. The State has appealed. Without in any way disturbing the verdict and judgment of acquittal the judgment is reversed on the propositions of law included in the appeal.

John M. Rankin, Atty. Gen., Jens Grothe, Asst. Atty. Gen., and M. D. Hall, Co. Atty., of Indianola, for appellant.

S.E. Prall, of Indianola, for appellee.

BLISS Justice.

The defendant, for a number of years preceding November, 1938, operated a bulk station for the sale on commission, of petroleum products of the Standard Oil Company at the town of New Virginia, in Warren County, Iowa. It is contended by the State that in the year 1938, the defendant turned in to the agency of the Standard Oil Company, at Des Moines, a number of sales tickets showing purported sales of the company's products, on credit, upon which he would receive commissions, when in fact he had made no such sales, and had forged the signatures of the claimed purchasers on the tickets. The indictment on which he was tried involved such an alleged sale to " R. Myers," and the forging of that name upon the ticket.

The defendant alleged six grounds in his motion for a directed verdict, one of them being the insufficiency of the evidence to support a conviction on either count, and particularly the failure to establish by competent evidence that defendant forged the signature on the Myers' ticket, Exhibit " 2." On the submission of the motion, the court, speaking to the County Attorney, said: " I don't see where the defendant has been connected with Exhibit ‘ 2’ in any way. I don't think you showed he had anything to do with the writing of Number ‘ 2.’ * * * I will sustain the motion for a directed verdict."

The State, on its appeal, has assigned six errors. Three of them are based upon the refusal of the court to receive the opinion testimony of three witnesses as to whether the defendant wrote the name " R. Myers" upon the ticket on which each count of the indictment was based. The fourth assignment is the claimed error of the court in refusing the offer of proof on the part of the State that the witnesses, Duncan and Edwards, would, if permitted, testify that from their knowledge of defendant's handwriting, gained by Duncan from having seen him write several times, and, by Edwards, from having seen him write on one occasion, which writing was introduced in evidence, the name, in their opinion, was written on the ticket by the defendant.

Assignments of error, five and six, complain of the direction of the verdict for defendant on each count.

The State may appeal from a judgment in a criminal case which is adverse to it. 1939 Code, § 13994. But there are statutory limitations upon the effect or results of that appeal. Code section 14012 provides that if the State appeals, this court cannot reverse or modify the judgment in favor of the defendant so as to increase the punishment, " but may affirm it, and shall point out any error in the proceedings or in the measure of punishment, and its decision shall be obligatory as law."

Since the defendant was found not guilty by the verdict of the jury, and the charges against him were dismissed, any decision we may make can in no way affect his rights or subject him to further prosecution on the charges for which he was tried. Its effect is merely an authoritative exposition of the law, which may be of service to those charged with crime, the state, the courts and lawyers for their guidance in the administration of the criminal laws, and as a precedent in future cases. Ordinarily on appeals by the state, in a criminal case, from a judgment on a directed verdict for the defendant, involving the sufficiency of the evidence to establish the charge, this court will not review the record to determine the correctness of the decision. A pronouncement of this court on the fact situation in one case could rarely serve any good purpose in the determination of any case in the future. Such appeals by the state are useless. While the matter of the sufficiency or the insufficiency of the evidence is a question of law, this court will refuse to review the record where it will benefit no one. But in many of such cases, the Attorney General has appealed in order to procure the consideration of certain rulings, and the settlement of specified propositions of law. Cases in which the foregoing propositions have been passed upon are State v. Woodruff, 208 Iowa 236, 225 N.W. 254; State v. Little, 210 Iowa 371, 228 N.W. 67; State v. Friend, 213 Iowa 544, 239 N.W. 132; State v. Traas, 230 Iowa 826, 298 N.W. 862; State v. Meyer, 203 Iowa 694, 213 N.W. 220; State v. Johnson, 157 Iowa 248, 138 N.W. 458; State v. Fairmont Creamery Co., 153 Iowa 702, 133 N.W. 895, 42 L.R.A.,N.S., 821; State v. Jackson, 128 Iowa 543, 105 N.W. 51; State v. Keeler, 28 Iowa 551; State v. Ward, 75 Iowa 637, 36 N.W. 765; State v. Miller, 81 Iowa 72, 46 N.W. 751; State v. Gilbert, 138 Iowa 335, 116 N.W. 142; State v. Kulough, Iowa, 133 N.W. 706 (Not reported in Iowa Reports); Town of Scranton v. Hensen, 151 Iowa 221, 130 N.W. 1079; State v. Bell, Iowa, 242 N.W. 401 (Not reported in Iowa Reports); State v. Johnson, 200 Iowa 324, 204 N.W. 273; and State v. Drain, 205 Iowa 581, 218 N.W. 269.

While the court in this case based its direction of a verdict upon the claimed failure of the State to establish matters of fact, the State claims that this failure was caused by errors of law on the part of the court in the rejection of testimony and offers of proof.

The first assignment of error is in the rejection of the opinion testimony of the witness, Duncan. This witness had been a salesman for the Standard Oil Company for five years. He was acquainted with defendant since 1937 and had seen him twice a month over a period of about a year. He assisted in auditing his accounts, checking over and making a report of his sales as shown by his books and tickets, in September and November, 1938. The defendant produced his tickets for the purpose of the audit. He testified that he had seen the defendant write several times. He had these tickets before him in the audit.

The County Attorney asked this question, " I call your attention to the words ‘ R. Myers' on Exhibit ‘ 2’ and ask you to state whether or not you have any opinion as to whether that is in Mr. Wickett's handwriting?" Defendant's objection to this preliminary question that it called for an opinion and conclusion of the witness, and that the witness was not qualified, was sustained.

The second assignment of error has to do with similar testimony by the witness, Edwards. He was a substation auditor for the Standard Oil Company. He had worked for the company since 1922. His territory covered many counties. His duties included the auditing of books and stocks, and the checking of sales and receipts. In September and November, 1938, he audited the substation operated by the defendant and checked him out. He made an examination of all sales tickets which the defendant produced from his files. Defendant placed these tickets in two piles before the witnesses, Edwards and Duncan. The defendant told them the tickets in one of the piles were " fictitious." In this pile was Exhibit " 2", and also Exhibits " 4" and " 5," being other tickets which the purported purchaser, named in each, denied signing personally, or by authorization. Exhibit " 2" bears date of August 3, 1938. In September, 1938, the witness, Edwards, saw the defendant write out a report of the sales made by him at his station in New Virginia covering nine days of sales from September 1st to September 9, 1938, both days included. It bears the name of the defendant and is on a blank form furnished by the company. It contains the names of more than twenty purchasers and sets out the product sold to each, the number of the ticket, purchase price, tax, etc. Edwards testified to these matters positively and his testimony is not denied. This report, which is Exhibit " 10," together with all other exhibits, has been certified to us. He was asked the preliminary question whether, from his knowledge of the defendant's handwriting gained in the manner above stated, he had an opinion that defendant had or had not written the name on Exhibit " 2." The same objection to the question was made and the court sustained it. Offer of proof was made as to each of the two witnesses referred to that they would have expressed opinions that defendant signed Exhibit " 2."

In the third assignment of error, the State complains of the rejection of opinion testimony offered by M. F. Henderson the cashier of an Indianola bank for about twenty years. He testified that in the course of his employment, he had occasion to examine specimens of handwriting for the purpose of establishing the identity of the writer. He was asked: " How often do you suppose you have done that?" He replied, " We see signatures all the time." He was then asked: " Do you compare signatures from time to time?" Answer, " Yes, quite a little." He was then handed Exhibit " 10," the standard, and Exhibit " 2" and asked whether he had an opinion whether the name " R. Myers" appearing on Exhibit " 2" was written by the same person who wrote Exhibit " 10." Defendant objected to the...