State v. Zbornik, 49080

• Decision Date: 05 February 1957
• Docket Number: No. 49080,49080
• Citation: 80 N.W.2d 735,248 Iowa 450
• Parties: STATE of Iowa, Appellee, v. Thomas ZBORNIK, Appellant.
• Court: Iowa Supreme Court

Page 735

80 N.W.2d 735

248 Iowa 450

STATE of Iowa, Appellee, v. Thomas ZBORNIK, Appellant.

No. 49080.

Supreme Court of Iowa.

Feb. 5, 1957.

Boyd G. Hayes, of Charles City, and B. C. Sullivan, of Rockford, for appellant.

Dayton Countryman, Atty. Gen., Dudley C. Lowry, Asst. Atty. Gen., and Jack W. Frye, County Atty., Charles City, for appellee.

THOMPSON, Justice.

About 2:30 a. m. on February 5, 1956, the defendant was arrested while driving his automobile upon the streets of Charles City. The arrest was made by police officers John Gordon, James Johnson and Ralph Milhan. The defendant was taken to the police station. While on the way and at the station, the arresting officers testify that he used obscene and indecent language and made threats. The testimony is this: 'Mr. Zbornik said that we should call Mike. Mike is the mayor. (Mayor Michael Micich.) Mr. Zbornik said if he hadn't been stopped he would have gone home and got his shotgun and we would not have got him. He said this at the time I first approached the car. He also asked me to take him home. He stated he wanted to know if we wanted a better job and I told him we had one and he said he would have that in the morning.' The officers testified that Zbornik was intoxicated at the time.

The grand jury having returned an indictment for the offense of operating a motor vehicle while intoxicated upon the public highway, the case came on for trial on June 5th, 1956. A verdict of guilty as charged was returned on June 7th. Upon this appeal no question was raised as to the sufficiency of the evidence to require submission to the jury, and we shall not discuss it. The defendant's complaints as shown by his assigned errors are first, that his counsel were not shown the court's instructions prior to their arguments to the jury, second, that the court erred in overruling the defendant's motion for a new trial and exceptions to instructions, 'particularly defendant's exception to Instruction No. 10', and third, that the court erred in giving Instruction No. 10 'as there was no sufficient competent evidence in the record to warrant or substantiate the giving of this Instruction No. 10.'

I. We shall first consider the assigned errors Nos. 2 and 3. The defendant says that 'these are so similar in substance they are argued together in the interest of brevity and convenience.' We understand this to mean that the only question raised by either assigned error No. 2 or No. 3 is the correctness and appropriateness of Instruction No. 10. In fact, this is the only point argued in connection with these two assigned errors, and is the major proposition relied upon for reversal. We set out Instruction No. 10 herewith:

'Certain evidence has been received as to alleged statements made by the defendant to two of the officers on or about May 26th and June 3rd, 1956, also defendant's admission of having offered money to the police 'kitty'.

'You are instructed that this evidence was received solely for the bearing, if any, which it might have upon the honesty or righteousness of the defendant's claim of innocence. The theory being that if one accused of a crime attempts to influence the testimony of persons whom he knows are likely to be witnesses against him, the jury has the right to consider such attempt as an admission that the cause of the party attempting to influence testimony of such witnesses is unjust and that his claim of innocence is without foundation.

'Before, however, you give any consideration to the alleged statements made by the defendant to these witnesses or the defendant's admitted offer of money to the police 'kitty' you must first find that such statements or offer of money were made for the purpose of influencing the testimony of these witnesses and if you fail to so find, then you should give such statements and offer of money no consideration whatsoever.

'If however, you do find that such statements or offer of money were made for the purpose of influencing the testimony of these witnesses or the prosecution of this case, then you should give the same such weight as you find it entitled to receive, together with all the other facts and circumstances as bearing upon the defendant's guilt or innocence of the crime with which he is charged.'

While at other places in his argument the defendant says that he does not concede that this instruction is a correct statement of the law as an abstract proposition, but contends that it is not, we find these statements in his brief and argument: That the trial court's theory in giving the instruction appears to be based on the Iowa cases of Kidd v. Ward, 91 Iowa 371, 376, 59 N.W. 279, and Gregory v. Sorenson, 214 Iowa 1374 1379, 1380, 242 N.W. 91; and further, 'The defendant has no argument with, or objection to, the soundness of the rule in the Kidd and Gregory cases as an abstract statement of the law.

'The defendant's objection to Instruction No. 10 is the theory stated in the instruction, bottomed on the rule above quoted from the Gregory case, simply and clearly does not apply under the evidence in the record * * *.'

The statement then goes on to refer to the evidence upon which the court apparently relied, and which the defendant thinks does not warrant the application of the rule laid down in the instruction. We must therefore assume that the defendant's real quarrel is not with the instruction as a correct statement of the law, but that the facts in the case at bar do not bring the rule as stated into play. In fact, defendant's argument seems to be based upon this thought.

Other Iowa cases which discuss the rule, in addition to Kidd v. Ward and Gregory v. Sorenson, both supra, are State v. Kimes, 152 Iowa 240, 246, 132 N.W. 180; State v. Koller, 129 Iowa 111, 113, 114, 105 N.W. 391; and Harrison, v. Harrison, 124 Iowa 525, 526, 527, 100 N.W. 344. A distinction between attempts to suppress testimony, which is properly regarded only as an admission that it would be unfavorable to the party trying to suppress it; and attempts to procure false testimony by bribery, which may be construed as admissions of the falsity of the briber's claims and the unjustness of his cause, is pointed out in Harrison v. Harrison, supra. This distinction seems to be still the rule in Iowa. The trial court in the instant case used the word 'influence' without referring to the method thereof, as by bribery. But we think under the facts shown in the record there was no prejudicial error in the wording of the instruction, and further, as we have pointed out, that the point is not in fact argued by the defendant.

Three incidents, referred to by the defendant in argument and by the court in the challenged instruction, form the basis of the controversy here, and it is upon the correct interpretation of the inferences that may be drawn from them that the decision must depend. It becomes necessary to detail the facts relating to these happenings.

The only witnesses for the state upon its case in chief were the three arresting officers named above. It appears there is testimony that on May 26, 1956, ten days before the opening of the trial on the charge filed against the defendant, the defendant, seeing the officers Johnson and Milhan on the street, called to them to come to him. He then asked them what the trouble was, said 'he knew there was hard feelings between us and him he thought and * * * Mr. Milhan said no, there is no hard feelings and he mentioned again he got off on the wrong foot, told us we had him cornered like a rat and we provoked him, irked him, he might called us a few names, but it could be overlooked * * *.' This appears from the testimony of Officer James Johnson, with corroboration from Officer Ralph Milhan.

The same witnesses, Johnson and Milhan, testified to another conversation with the defendant which took place about 1:30 a. m. on June 3, 1956, two days before the opening of defendant's trial. Their testimony is that the defendant called to them from across the street, and they went across and talked with him. In substance, the officers say that the defendant said he was sorry he got off on the wrong foot with the police, and still wanted to be friends with them. He asked about the families of the policemen, and when told by Milhan that he had two children, Zbornik said 'he was in a position to help our children out if they wanted to go to college after they got out of school,...