State v. Yetzer

• Citation: 66 N.W. 737,97 Iowa 423
• Parties: STATE v. YETZER.
• Decision Date: 08 April 1896
• Court: Iowa Supreme Court

97 Iowa 423

66 N.W. 737

STATE

v.YETZER.

Supreme Court of Iowa.

April 8, 1896.

Appeal from district court, Cass county; Walter I. Smith, Judge.

Indictment for fraudulent banking. Verdict of guilty, and judgment, from which the defendant appealed. Affirmed.Jacob Sims and John Hudspeth, for appellant.

Milton Remley, Atty. Gen., H. M. Boorman, Co. Atty., and Swan & Bruce, for the State.

GRANGER, J.

Haywood and Albert were jurors on the trial of the indictment. Mr. Albert, in answer to questions as to his qualifications to sit, said, “Have seen Mr. Yetzer; know him; but have formed no opinion about case. Could try it impartially without reference to anything I have heard about it.” On cross-examination he said: “I take the Atlantic Telegraph. Read it.” At this point counsel read to the jurors several articles published at Atlantic, where the Cass County Bank was located, with regard to which the fraudulent banking is charged. We copy two of the articles as fairly indicating the tenor of all. They are as extreme as any in their statements, and if we treat them as indicating the general tenor of the articles it is certainly fair to the appellant. They are as follows:

“Hold Fast to the Right. The Telegraph wants to add a word to what it has repeatedly said about the creditors of the Cass County Bank keeping right on their side, not violence. The dispatches which have recently gone forth from Atlantic to the metropolitan dailies do injustice in presuming a strong desire to violence. They want their money or justice. Think of it! Hundreds of thousands of dollars belonging to an honest, hard-working people swept away,--worse than swept away. It has been squandered and sequestered by men in whom they placed a superb confidence. This crime has phases worse than robbery, worse than burglary, worse than the operations of the bunco bandit or faro dealer. These men feel that their money has been wrung away from them by the arts of thievery in the guise of friendship. The amount of these losses is startling, and the creditors feel that the money has been used in private schemes and extravagancies. This is exasperating. The amount of the loss is exasperating, the character of the loss is exasperating. But, still, these creditors, smarting under the method and extent of their robbery, want no violence. They want every cent available. They want justice. They'll have justice. One other thing: It has been said that this failure would hurt Atlantic and community for a long time. That is not so.”--Atlantic Telegraph.

“Great excitement was created Saturday morning by the currency of the rumor that the president of the defunct bank, J. C. Yetzer, was preparing to leave the city. A mob of two hundred persons quickly gathered at the depot to intercept his escape. As the train was pulling out, the cry was raised that Yetzer had been smuggled on board. The train was stopped after it got out of the yards, and detained for ten minutes, while a search was made. It was the limited, and a great protest was made by the trainmen. Their search was fruitless, and Yetzer was shortly afterward found in a box car where he had concealed himself, and the crowd yelled to hang him.”--Press Dispatch.

The juror was then examined as follows: “Q. You heard me read those newspaper articles to Mr. Ruggles, did you not? Albert: Yes, sir. Q. You read these articles then? A. Yes, sir; I read something similar to that. Don't know as they had any effect on me. I have known the editor of the Telegraph ten years. Would place as much reliance upon his word as upon that of any ordinarily truthful man. These articles did not cause me to think bank officials innocent. Q. You think you can read articles in newspapers in which men are charged with being robbers and despoilers of widows and orphans,--a paper you take into your family,--and read these things without having any influence on your mind? A. I felt sorry for them when I read them. Q. That is, you felt sorry for the widows and orphans? A. Yes, sir; and all the people who lost money. Q. When you read that women had lost money in the bank,--women who had churned in calico dresses, and carried eggs to town,--that aroused your sympathy, didn't it, for those women? A. Yes, sir; I felt sorry for them. I thought it was so at the time. My opinion at that time was inclined against all the officers of the bank. Nothing has occurred since to cause me to change my opinion. Re-examined by county attorney: I have no opinion as to whether Yetzer was president of the bank at time charged in indictment, or whether the bank was insolvent, or whether he knew it, or whether he is guilty of the crime of fraudulent banking. Have no prejudice against any of the bank officers. Wouldn't be influenced by anything other than the evidence. Recross-examination: Am 52 years old. It would take evidence to remove my opinion that there had been mismanagement or misappropriation in the bank, which I said I had formed. When I heard evidence, I could lay aside the impression. Re-examination: Q. Do I understand you to say that this impression relates to the guilt or innocence of the defendant in this case? A. Well, my impression is that I could do justice either way if I could hear the evidence. My impression relates to the Cass County Bank officers generally. Recross-examination: I think bank was insolvent when it went into hands of receiver.” The court overruled a challenge to the juror, and complaint is made to the ruling. It was manifestly right. The ruling has undoubted support in several cases. State v. Munchrath, 78 Iowa, 268, 43 N. W. 211;State v. Smith, 73 Iowa, 32, 34 N. W. 597;State v. Vatter, 71 Iowa, 557, 32 N. W. 506;State v. Weems (Iowa) 65 N. W. 387. See, also, Basye v. State (Neb.) 63 N. W. 811. Of the cases we cite from Iowa there is not one that is not absolutely conclusive of this point. As to the juror Haywood, the showing in favor of his qualifications is not so apparent, but, under the authorities cited, there was no error in the ruling. However, for another reason, the ruling would not be prejudicial error. Defendant waived a peremptory challenge by which the juror Haywood might have been excused. It is said in argument that but one such challenge was waived, and that it was not sufficient to excuse both Haywood and Albert. But it was sufficient to excuse Haywood. As to Albert, the ruling is so conclusively right, and his competency so well established, that his retention could, in no proper sense, serve as an excuse for not excusing Haywood peremptorily. State v. Elliot, 45 Iowa, 486.

2. The state served on the defendant notice that it would, on the trial, introduce witnesses whose names were not on the indictment. Of such witnesses A. W. Dickerson was one, and it is said that as to him, as well as others, they were permitted to give testimony as to matters the substance of which was not stated in the notice. It is in fact contended that the notice stated only legal conclusions, so that facts could not legally be proven thereunder. The part of the notice relied on as stating the substance of the facts expected to be proven by the witnessesis as follows: “That the plaintiff expects to prove by said witnesses and parties above mentioned that the said Cass County Bank was on and prior to December 27, 1893, a bank of discount and deposit located in Atlantic, Cass county, Iowa; that said defendant, and each of said defendants, were stockholders and directors in said bank, and were the managing parties thereof; that during the months of June, July, August, September, October, November, and December, 1893, the said bank sold to divers parties drafts which were not paid, but were dishonored and protested, and that during said months the said Cass County Bank was wholly insolvent, and was unable to meet and pay its current demands and liabilities in the usual course of business, all of which was well known to the defendants, and each of them; that when said Cass County Bank was insolvent as aforesaid, the said defendants, and each of them, permitted and connived at the receiving of deposits by A. W. Dickerson in said bank; that on the 27th day of December, 1893, Theodore G. Steinke was appointed receiver of said bank, and now has in his hands the assets of the same; and that on and prior to December 27, 1893, the liabilities of said bank were largely in excess of its assets.” By Code, § 4421, it is provided that the county attorney shall not use such witness on the trial of an indictment “unless he shall have given to the defendant a notice in writing, stating the name, place of residence, and occupation of the witness, and the substance of what he expects to prove by him on the trial, at least four days before the commencement of the trial.” We think the notice is a compliance with the statute. The county attorney was not required to state the details of the testimony to be offered, but the substance of what he expected to prove. The notice states the main facts towards which the testimony would be directed. The notice is not like that in State v. Kreder, 86 Iowa, 25, 52 N. W. 658. In that case the notice stated no particular facts to be proven, but, in effect, stated that it was expected to prove by the witness that the defendant was guilty. In this notice the defendant is informed that the witnesses will be used to show the existence of the bank, the character of the bank, who were its stockholders and officers, what the bank did, that it was insolvent, and that the defendant permitted and connived at the receiving of deposits, etc., acts upon which a verdict of “Guilty” might, to a greater or less extent, rest.

As to the question that the witness Dickerson and others were permitted to give testimony as to facts not included in the notice, we think the record does not sustain the claim. The notices unmistakably inform the defendant that the witnesses will testify to facts bearing upon the solvency or...