The State v. Bateman

• Decision Date: 10 December 1879
• Citation: 3 N.W. 622,52 Iowa 604
• Parties: THE STATE v. BATEMAN
• Court: Iowa Supreme Court

3 N.W. 622

52 Iowa 604

THE STATE v. BATEMAN

Supreme Court of Iowa, Des Moines

December 10, 1879

Appeal from Tama District Court.

THE defendant was indicted for the larceny of four hogs. He was tried, convicted and sentenced to the penitentiary for three years. The defendant appeals.

REVERSED.

W. H Stivers and C. B. Bradshaw, for appellant.

J. F McJunkin, Attorney General, for the State.

DAY, J ROTHROCK, J., dissenting.

OPINION

DAY, J.

After the jury were sworn to try the cause, and before any evidence was offered by the State, the district attorney read to the jury the indictment, and stated the defendant's plea thereto, and immediately afterward commenced to make a statement to the jury of the cause on the part of the State. The defendant objected to the district attorney's making any statement of the cause, excepting to read the indictment and state the defendant's plea. The court overruled the objection and the defendant excepted. The district attorney then made a detailed statement of what he expected to prove, and closed by saying that if he proved these facts he had "no fears at all as to what twelve responsible, substantial men of Tama county will do in the end." At the conclusion of this statement the court offered to let the defendant's counsel make a statement to the jury, but counsel declined to make any statement at that time, stating to the court at the same time that they would reserve the privilege of making a statement of their case until after the testimony in chief for the State should be introduced. At the close of the testimony for the State, and before any evidence was offered by the defendant, the defendant's counsel offered to make a statement of their case to the jury. To this the prosecution objected, the court sustained the objection and the defendant excepted.

I. The defendant insists that the trial must proceed in the order prescribed in section 4420 of the Code, and that the district attorney had no right to make any statement of the case, other than to read the indictment and state the defendant's plea. Chapter 19, Laws of the Seventeenth General Assembly, provides that after the reading of the indictment the district attorney may briefly state the evidence by which be expects to sustain the indictment, and the attorney for the defendant may then briefly state his defense, and the evidence by which he expects to sustain it. This case, however, is not governed by the provisions of this chapter, having been tried before it went into operation. We are of opinion, however, that before the enactment of this statute it was competent for the court, in its discretion, to allow the district attorney to make a statement, and that the only effect of this statute is to secure, as a matter of right, what the court before might, in its discretion, grant or refuse.

II. It is claimed further, however, that the court, having permitted the district attorney to make a statement, should have allowed the defendant to make a statement. The court did, at the conclusion of the statement of the district attorney offer to let the attorneys of the defendant make a statement. They declined to do this at that time, but informed the court that they would reserve the privilege of making a statement of their case until after the testimony in chief for the State should be introduced. If they had been informed that they must make the statement then or waive the right to make any statement, there would have been no error in refusing to permit them to make a statement after the testimony for the State had closed. But the passing of their suggestion in silence by the court, and by the district attorney, may have induced them to believe that no objection would be made to their statement, on account of the time at which it was proposed to offer it, and to waive the making of the statement before the introduction of any testimony. It must have been apparent, both to the court and to the district attorney, that the attorneys for the defendant waived the making of a statement before the introduction of any testimony in the belief that they would be permitted to make a statement at the close...