*1 Iowa, Appellee, STATE of CAREY, Appellant.
James Schofield
No. 52942.
Supreme Court of Iowa.
Feb. Pinegar and Norman
Richard L. G. Moines, Jesse, appellant. of Des Gen., Turner, Atty. Richard C. and Wil- Claerhout, Gen., Atty. ap- liam A. Asst. pellee. *2 requires proof entry. LeGRAND, illegal of an case Justice. Iowa, 708.1, Section Code of 1966. appeals fol- judgment from
Defendant assigns crime of Defendant errors our of the four lowing his conviction prej- The deals with sections consideration. first burglary as defined aggravated 708.2, Iowa, alleged 1966. We udice to resulted the Code have 708.1 and of trial; during of the remand a new trial. misconduct the bailiff reverse and county the at- second with misconduct of an incident charge arose of out defend- torney in the cross-examination of Harlan, Iowa, evening on the of October ant; third the trial the with failure of alleged to when defendant to sustain motion for court Robert Musich have the home of invaded ground verdict on of insuf- directed the dangerous weapon black- a armed with —a ficiency evidence; with fourth an assault. jack intent to commit —with objections and 14 relat- to Instructions #10 defining ing the issue of consent in to the date in Robert Musich On entering. of breaking elements Company, employed Pork was Western by members progress where a was strike alleges Defendant misconduct I. first Ameri- Packinghouse of United Workers charge on the bailiff who was Defendant, Oscar employee ca. jury. He this misconduct claims Iowa, Mayer a member Perry, at & Co. sufficiently justify union; During not. of that Musich was new trial. working the strike Musich continued this on March picket day. began Trial of case crossed the each lines furnished day on that coffee distantly related Although Musich is far charge. As in the room without wife, men did not to defendant’s the two this as the record the source of shows relation- each other. know Because jury. gratuity apparent was not then however, ship, members of several following morning when defendant’s suggested striking union should arrived at noticed picket counsel the courthouse honoring talk Musich about up set in the room a coffee service lines. typewritten sign with a as follows: went Musich’s home at Defendant will “Coffee be furnished approximately evening 8:00 on the P.M. county county and the clerk room Musich, and two October his wife attorney.” knocked children were there. Defendant and, Musich the screen door when Mr. mistrial, immediately for a He asked answered, permission to come asked hearing at which was overruled after Although testimony dis- house. is in concerning the bailiff testified pute, the no verbal State’s evidence shows incident. this surrounding circumstances consent enter was given. There evi- testimony appears it that the From dence, however, opened that Mr. Musich coffee, although purchased had bailiff thereupon the door and entered. attorney county intended to apparently opened it How wide was and whether it; her for it was available reimburse implied was an mat- invitation to enter are cared for all in the courthouse who disagreement. They ters bitter will be de- it; sign and that to which enjoy discussed later. there without objected placed fendant any had event defendant contends he county knowledge consent implied, to permission, express either attorney. argues enter the house. this is He practice The trial found
complete
burglary,
charge
defense to the
mistrial,
objectionable
denied
of this
since that
under the facts
crime
spent
night
improbable
attorney
it was
presumably because
family, although
therefrom. We
prejudice had
was shown the
resulted
case
respect
said,
was not discussed.
consistently
misconduct with
held
There
“We
coun-
litigant,
discover no
jury,
authorizing
whether
con-
court,
not be
clusion that
juror
sel
will
either the
or the attorney
or officer of
prejudice
grounds
wrong.
good
trial unless
intended
for a new
character
*3
1926a, and high
Criminal Law
respectability
shown. 24B
neither
of
are
§
C.J.S.
questioned.
237;
Iowa
page
Poffenbarger,
State
556, 557,
and
opinion
“We are united in the
that the
citations;
Faught, 254 Iowa
ought
stand,
verdict
not to
in view of the
426, 431,
transactions and associations between the
attorney
juror
and
pend-
trial
while the
however,
are,
with
We
confronted
ing.
unsafe,
It would
extremely
for the
in
equally
rule
another
well-established
pure and correct administration of
law,
jury
considering this error—that
through
by jury,
trial
permit such
trans-
any
suspicion
is to be
and
above
* * *
actions.
under
practice
brings
proceedings
its
suspicion
prohibited.
we
is to be
While
“To sanction the
question
in
transaction
county attorney
absolve the
of
miscon
bring
would
disgrace upon the administra-
duct in
he
regard
since
was unaware
tion of the law.
safety
There is absolute
unfortunately
happened,
of what
the result
adopt;
danger
in the rule we
in a
same. As far as
nevertheless the
different one.”
concerned,
jury was
coffee was furnished
Lynch
In
v. Kleindolph, supra, at page
for
compliments
prosecutor
with the
of the
764 of the Iowa Reports, 216 N.W. at page
the State.
said,
3 we
“The
involved herein
any juror
No
here
one contends
engagement
social
between
[a
coffee,
corrupted
price
cup
of a
of
and
jurors]
one
a
is of more serious
zealously
along
but we
with all courts have
character than
appear
would
at first blush.
jurors.
independence
guarded the
utter
probably
There is
no
interesting
more
or
For that
we have criticized
reason
fascinating question
history
involved
deputies, who
a
and
conduct of
sheriff
his
of courts than
origin
development
trans
case,
were
who
also witnesses
jury system.
of the
It is one of the most
they
ported
a
where
jury
restaurant
system
vital
government.
elements of our
supra; a
Faught,
together,
ate
the average
concerned,
So far as
citizen is
trans
gave jurors
county attorney who
he
less
touch with
the executive and
Neville,
portation
trial, State v.
during the
legislative department.
he
When
is con-
84;
Iowa
N.W.
private
differences,
fronted with
public
court
important
rode to the
witness who
naturally
turns to the courts for relief.
Stock
juror, Chicago
house with a
Joint
His
faith
be encouraged.
courts must
Eggers, 214
Land Bank
Iowa
people
When the time
that our
comes
lose
a
drove
a defendant who
courts,
faith
government
our form of
poor
during
recess
juror to the
farm
**
nearing
is fast
its end.
That faith
him, Lynch v.
dine with
invited him to
can only
be sustained
keeping our
762, 764, 216 N.W.
Kleindolph,
judicial proceedings
only
free from
2, 3,
vented. behalf sub immaterial, tomorrow mits cup memory himself to the tests coffee same might greater perhaps credibility, value and something subject to the restrictions of that the 781.13, fact Iowa, any Likewise section be tendered. Code of other innocent immaterial. witness. here was It is conduct also well settled that the any upon trial court has effect considerable discretion con might public cerning who become the extent scope member of of cross- had same if it Haffa, it was the familiar with examination. State v. favor attempt 35, 40; to secure intentional
been an Frese, then in persons were even who with those Voltenburg, vestigating that citations; Van has suborna- and. prejury justice, tion of or interference with 200, 147 separate this is a case. I don’t think attorney county present case proper here go investigative into an which he conceded information
had technique to locate witness. day of the on the effect that hearsay to the a conversation defendant, in crime alleged “Mr. I going Larson: But know I am Pollock, going he “was had said with Karen rebuttal, be faced a situation here on somebody head.” hit Harlan and possibility of rebuttal on several state- more ments made was of him direct statement examination of such Evidence go importance it would no witness «to on. This because in effect passing than specific they intent seems to me that are directly establish the allowed to tend to advantage crime take element of situation where there is an essential tie-up woman, charged. Ob- between this Pollock with which her disappearance, defendant, and the question was overruled jection to I known, would like Assuming to have that negatively. if there answered is anything proper can was a be drawn that this arguendo it, inferences, certainly proper question that is one, in- what followed thereafter quire into. scope proper cross- beyond the went
examination. present At Court: time *5 questions at- By series the State that court feels that be prejudicial would that Karen Pollock was tempted show to you that what are trying inject to and that defend- as a witness unavailable in the case. That this defendant without responsible her ab- ant was somehow proof further on the State might have speculate not that this sence. We need something had do to to make this wit- motive; county at- State’s unavailable, ness unless the State has some it torney that was in announced chambers that, proof actual you I don’t think very question. this discussion on during prove can it.” county attorney had stated he any admissible evidence of statement made then that directed further Pollock; Karen that questioning along this line be abandoned. be Karen Pollock would not called as a unavailable; she witness because that Later that afternoon defendant’s counsel questioning purpose in defendant was his moved that all cross-examination concern- Karen to determine “where Pollock ing Karen Pollock stricken and that any whether or not there are facts from jury be admonished not to consider it. could infer she how had Despite the proceedings chambers, encouraged to become unavailable.” which have been described, heretofore this Then occurred: despite the county attorney’s that admission you any Do have “The Court: informa- he had no evidence to introduce concerning information, tion, investigative that some- Karen any Pollock or statement claimed to has talked to this witness Pol- one [Karen have her, been made to and although the ? lock] county attorney had already conceded he produce could not Karen Pollock as a Yes, hearsay. it “Mr. Larson: witness, he nevertheless made this state- you “The And if someone told Court: ment : any of things, these I don’t think Honor, be admissible in the would trial of this “Your may I request ruling you proof, case. If some I think reserved and allow us enough time to up it State to do its own in- find this woman ?” en, purpose towas the obvious more Once may we held some be so “toxic” any support, evidence impression, create the poison the in character as minds of responsible Karen that defendant hope jury beyond any removing prej- Pollock’s absence. by a udice later withdrawal evi- approve conduct of We cannot recent dence. more case of in his cross-examination county attorney Tharp, purpose put was to defendant. His avowed hy- damaging held a answer to a by insinuation and in- before the pothetical question which assumed certain highly damaging facts which nuendo facts could not be cured way admittedly properly pre- had no to disregard ques- a later instruction per- if he senting them. Indeed could hy- the jury tion and answer if found the respon- jury that suade the pothesis upon which was based es- appear failure sible for Karen Pollock’s tablished evidence. We held there witness, as a it is inevitable such con- the damage could not be simply undone heavily weigh against clusion de- by an disregard. Although instruction to jury’s deliberation as fendant in the to his differs from situation when testi- guilt or innocence. mony shortly is withdrawn after its ad- mission and the is then directed exactly county what the This is at disregard it, it does bear subject torney hoped accomplish, may and he well under discussion. so, though the have done court with even drew the evidence from consideration of be some differ While Ordinarily such jury. withdrawal ence opinion about the effect of this Olson, any cures error. State cross-examination, it must be conceded 214, 225; 536, 554, 86 N.W.2d beyond went proper bounds of cross- Bolds, examination. It had no relevance Warren, examination, direct nor way was it *6 1183, 221, 47 225. N.W.2d directed testing toward memory, his tory, motives or matters affecting his the the Misconduct on credibility. simply It was suggest county attorney is not alone reversible the that defendant was somehow re deprived it as have error unless is such sponsible for the failure of one of the Haffa, trial. defendant of a State v. fair important State’s appear witnesses to be Barton, supra; 924, 258 Iowa State fore them. previously We have said this citations; 934, 886, 891, 140 and N.W.2d does not meet the proper standard of legal Mercer, 371, State v. 154 N.W.2d procedure to which is entitled. 140, 142, and citations. Tolson, 733, State 735, N. 82 105, 106, citations; W.2d and State v. However, we have held in a num- Moon, 26, 35, 148 N.W. ber cases that the mere withdrawal of 1005. always evidence does prej- not remove its udicial effect. In v. Brundidge, State The real objection to this tactic was 920, 921, Iowa said, we “It is Haney, stated in State v. 219 Minn. also, true, state, contended we follows, “The that, have recognized the rule where in- permitted by State not means competent received, has been evidence its insinuation or incompetent innuendo of subsequent improper questions plant withdrawal exclusion in the minds of ordinarily trial jurors court will cure the a prejudicial error. belief in the exist- is, however, may easily a rule which ence of evidence which is otherwise not be in abused, especially thereby admissible prevent of a the de- — criminal case —* In State v. Pad- fendant having from a fair trial.” In Bass, testimony tered the house. The of Mr. 37 A.2d 93 N.H. said, warrants Under Musich conclusion. Hampshire Supreme Court New “ * * * previous our decisions this be attorney suggest would An should not enough breaking prej- constitute en questions facts in his Sorenson, tering. State will be there is or evidence udicial unless 411, 413; Murray, 138 N.W. of such facts.” N.W, Iowa held to effect We have like hold there We also was sufficient evidence Poston, 203 N.W. permit pass on defendant’s recently 258. We have criticized to commit assault at the time intent attorneys per- practice prosecuting who question. improper questions who asking sist in This, however, fully dispose does needlessly flirt with reversible error. argument. While point, the discussion precisely While not Gill, from which could find against just issues men- is of interest here. tioned, evidence, too, there was which repeat what at the We we said conclu- justified contrary result on opinion. Perhaps I sion to Division of this matter involving vital consent to en- erroneous cross- ter the house where offense occurred. defendant, examination view of theory This was the of the defense and promptly fact that it was withdrawn we find properly instructions did not jury, consideration of the would not of jury. submit the trial, issue to the require a itself new but nevertheless it is one of considerations which have considering point kept must convinced us that the case must be re- mind circumstances under which versed. refer again We later. entry extremely were effected un- usual. This was an entry by one of III. nowWe consider last as- two acts usual of stealth or nor force signments dealing of error with the suf- accomplished upon a darkened or un- ficiency evidence and the instruc- occupied house. Here defendant went to relating tions to the issue consent. De- lighted front door aof home argued fendant a single assign- these as was occupied. way knew He claims his ment and treat them same man- only by was barred a combination- storm ner here. and screen door which was closed. He *7 on knocked the door. He talked with Mr. In considering sufficiency evi- Musich. He permission asked enter. to dence testimony we must consider light favorable most to the State. State virtually This much is undisputed. A 331, 149 N.W.2d Wesson, opinion arises, however, difference of as Stodola, citations; happened to what thereafter. Defendant 920, 921; Mr. claims Musich told him to come in and Harless, opened permit the screen door to his en- argument directed 211. Defendant’s try. this, Mr. although Musich denies ad- under circumstances which toward the mitting he verbally did not refuse defend- entry gained He house. asserts request. Musich, ant’s although Mrs. only there is no evidence from which jury away, few feet gave no version at all breaking could find a and entering. concerning of the controversy. agree We cannot with defendant. There There also evidence concerning con- is considerable tradictory evidence from which statements made Mr. Musich jury event, could find wrongfully following defendant both to the sheriff and opened the screen and illegally testimony door en- in his before the Jury. Grand pre- properly this matter has whether Mr. Musich as to whether dispute appeal. wide, for this served door, how and if so
opened reasonably believe could whether procedure apply not rules of civil do Our the crucial enter are permission to he had 780.35, matters, but section to criminal the de- believe case. We points of Iowa, provides relating rules Code of this issue sub- have right had fendant juries in cases shall instruction of civil instruction which jury by an mitted to prosecutions. crimiiial apply as well theory. not We explained his do fully Iowa, also 787.3(5), Code of Section provided did so. It Instruction believe instructing a material error in on makes as follows: trial. point ground of law a for new that the instructed you are “ trial in a criminal A defendant meaning entering within breaking objections his to the instructions reserve in Instructions described as the offense his new after making until motion for entering that and 8 are #7 judgment. and before We conviction referred to the offense breaking of however, held, when the frequently against the consent must be Instruction #9 issue instruct on certain trial court does occupant.” spe a more upon which defendant desires he must instruction cific or additional to consent reference That provided in rule request therefor as make properly It did not instructions. the entire Procedure. State Rules of Civil Jen under the present issue sen, 1371, 66 N.W.2d Here this case. facts of particular 945, N. 484; Horrell, consent, of verbal only evidence not request did Defendant an W.2d denied, even more but in turn consent, it did additional instruction concerning the the evidence important was question specifically he now raise implied invita door opening of argues before us. denied It cannot be enter. by conduct as may manifested consent got instructions con- well could by words. well attention from court counsel siderable Mr. this record that under have found preliminary stages their during the to consent amounted actions Musich’s an “in- preparation. The record shows the house. The con enter proposed concerning formal” discussion made it this issue flicting statements instructions, during which both defendant’s explained. important that all more and the trial referred to de- counsel explanation, could such Without objections first right fendant’s assert given in need not be know consent trial. in a motion for new The record event, nor, what con express terms during that further shows these comments amount to consent or duct would discussion: belief it in a bona fide justify defendant informally calls “The defendant Burglary given. § Rad been C.J.S. attention of the court that the entire set Abley, 109Iowa pages proposed instructions fails to state in *8 862; Annota L.R.A. 46 N.W. 225, breaking entering and that its definition of 555; Keys, tion, 93 A.L.R.2d consent, express be without the same must 946; P.2d Smith Or. implied, openings that of doors are or all 1071, 1073, Alaska, 93 A.L. State, 362 P.2d consent, breaking, if there is and there R.2d consent, express case is evidence implied. that the Also court nowhere or rely upon the seeks Defendant breaking jury that the must be tells on properly instruct failure to court’s occupant, knowledge without grounds of his as one consent issue of anywhere the in- nor does the court arises question trial. a new request served alert the trial entry less the that the must jury tell the structions question the entire consent. and court to the consent be without ”* * * occupant knowledge discussion informal heretofore men- objections urged tioned and the can- And later: grounds ap- not serve as for defendant’s and enter- breaking “Your definition of peal. Schmidt, 972, 980, Honor, your In- set forth in ing, Your 631, 636, citations. How- 14 of final struction draft] [Instruction ever, entirely disregard we cannot them to, I draw already referred I have considering given by when the instruction it as state- lacking attention your apparent the court. the trial court knowledge and concerning consent or ment understood basis for defendant’s dis- implied. express can either be or consent satisfaction with instruction on consent. as it under this instruction now Because implied The issue of consent and consent * * * reads, if he invited into were pointed conduct was several out times. house, your in- if the followed quite defendant, It is true in the discussion and said that the offense of struction instructions, requested about in the in- gaining burglary entering consists of or struction, trial,' and in the motion for new dwelling opening a a closed access to persistently question confused the Mr. * * * they though find even could door entry Musich’s knowledge of the with the a opened in such as to be -was manner implied elements consent. The invitation, implied they opened that if an knowledge importance is of no under accepted the any more and came in and these circumstances and it would have been guilty would still be invitation [he] improper to include that element in an ” * * * burglary instruction, but that does not mean de- thereby deprived fendant is right of his making a formal re- When came to proper have a instruction consent. His however, only this: quest, defendant asked request wrong for a one not excuse does “* * * you a are instructed give right failure to one. the mean- breaking entering, within ing charged of that offense infor- already theory We mentioned the mation, entering ac- gaining consists of or concerning implied consent was vital by opening dwelling cess to door or defendant’s case. While evidence of by removing breaking window or or assault extremely of some kind was strong, dwelling of such or obstacles or im- other burglary toas under the bizarre pediments entering that interfere with the existing circumstances here was at best dwelling, or access to said and the same tenuous. The entire matter turned knowledge must be without the or consent Musich, whether Mr. either his words occupant occupants thereof. conduct, enter, invited defendant would constitute a said ifc “So dwelling [*] * occupant >> without the this case * * * * * * breaking knowledge you was broken into said act or acts find or consent * * * entering tive of the whole case as far as or whether defendant was entitled lieve he had done so. This was determina- Criminal Law important yardstick by concerned. Yet disputed § 1324, page fact. 23A determine 829 and burglary C.J.S. given be- § 837; Nesbit, complaint appeal 1325(4), page Defendant’s Sanford 695, 698; given that the instruction as did not afford Wilson, any guidelines or directions as to consent, Cox, implied resulting consent *9 616, 620; Rowe, v. conduct rather than verbal consent. 34 N.W.2d State 246, 422, 427; requested did Neither his Neverthe- Iowa State one. N.W.2d cause herein this stated the reasons For 205, 210, 128 N.W. Iowa Manning, v. re-trial. remanded for and reversed 345, 347. remanded. and Reversed Jensen, In State said, “If we BECKER, [de- RAWLINGS, 66 N.W.2d MOORE, and be instructed wishes fendant] concur. JJ., duty to point, a certain upon situa- There are certain the court. advise I and MASON, concurs Divisions J., important is so when a matter tions result, but dissents and in the II it that part integral an much or so case III. Division upon to instruct duty it is generally But request. it without ” * * * added.) (Emphasis not so. LARSON, GARFIELD, J., and C. STUART, JJ., dissent. SNELL here. situation believe We guilt innocence holdWe MASON, part properly (concurring determined not be burglary could Justice dissenting com- in part). full and under the issue of explaining plete instructions I concur in the result reached implied. consent, express both majority reversing this case do so on the basis of errors considered matter here under discus- holdWe majority opin- in Divisions I and II of it was the defendant vital to sion so assigned ion. I would either of these hold full give a obligation trial court’s or in errors combination were complete instruction the issue required reversal. consent.
However, I would hold failed preserve properly his asserted as error find some merit in each IV. We error, any, instruction 10. Perhaps assigned errors. of defendant’s giving of this invited and instruction was require alone new none is sufficient join this reason I in that of Divi- trial but a careful consideration of commencing sion III the dissent with record, the whole we are convinced complete paragraph second column 2 deprive has de cumulative effect been to many page 49 which starts: “We have held cir fendant of a fair trial. such Under ” * * * ending times statement cumstances, obliged are section under “It page near the middle column 53: 793.18, Iowa, give him a new Code of instruction’, was not for ‘an additional one. asserting.” insists on authority This is not to be invoked
lightly. should resorted to GARFIELD, (dissenting). Chief Justice when, here, defendant would otherwise I am judg- convinced the court’s right be denied his to a trial. fair As right ment is and should be affirmed. bearing subject on this see v. Ander- State son, 38 N.W.2d questions No one accused is en- 666; Mabbitt, State titled a fair trial. I think this defend- 528; Leahy, ant was such a accorded trial. 447, 453; Iowa State 54 N.W.2d McElhaney, sight of, It should not be lost however Post, 573, 578, 579, State parties are to a case two criminal 11, 14, 15; Cusick, and that the as well as the defense is entitled fair to a trial. have fre- We
37
Haffa,
jury
statement
the
was then selected
v.
this out. State
quently pointed
40,
1283,
35,
taking
the fol-
of evidence commenced
N.W.2d
1275,
71
day,
for
914,
198,
lowing
100
after defendant’s motion
76 S.Ct.
cert. den. 350 U.S.
1019,
Case,
he made—was made
Iowa
mistrial—one
five
801;
State v.
L.Ed.
240;
Kelly,
v.
State
75 N.W.2d
overruled.
564;
91 N.W.2d
assertion,
majority’s
The
“As far as the
931-932,
Barton, 258 Iowa
State
concerned,
jury was
was furnished
coffee
like effect
891. To
(the
compliments
the
jury) with the
Crim.Law,
See
234.
Am.Jur.2d,
section
prosecutor
inaccurate and
for the State” is
Dwinells, 259 Iowa
also State
Shelby
the
prosecutor
unfair. The
was
;
Criminal
C.J.S.
county attorney.
he had
No- one claims
961, page 839.
Law §
jury,
the
any part
furnishing coffee to
any
any juror
informed
was so
necessarily
Also,
trial does not
a fair
shown,
far as
manner
so understood. So
or
absolutely
perfect
one. State
mean
including the
Barton,
juror
who,
was
all no
told
Haffa,
Case,
county attorney, furnished the cof-
Guthrie
Hess,
supra;
day
empaneled.
the
fee
Mercer,
dic-
Defendant’s
for mistrial was
motion
March
at 9:05 a. m.
tated into
record
respected
The
Cardozo
late
Mr. Justice
county at-
accused,
ground
Guthrie
due the
though
declared: “Justice
* * *
for the
supplying coffee
torney had
must
We
is due the accuser also.
so
jurors
lady jury bailiff had
and the
majority’s
keep the balance true.”
Greenfield, the
jurors.
Mr.
in advised
appeal weighted
consideration of
immediately
offender,
denied cof-
alleged
main,
opin-
In the
defendant’s favor.
supplied
any juror with
fee had been
thought
matters
to be favor-
ion refers to
counsel then
knowledge. Defendant’s
minimizing
ignoring or
able to him while
permitted to examine
asked and
matters of fact and law favorable to
witness.
bailiff
as his
under oath
state.
paid
bought and
she
testified
pointed out the crime
She
I.
It should be
coffee;
in a
sixty cents
left
county,
someone
Shelby
in Harlan,
was committed
day
previous
pan
little
near
coffee
De-
where the indictment was returned.
con-
paid for what was
than
the which more
change
venue on
fendant moved for
morning she
sumed;
she made coffee
a fair trial
ground he could not receive
note
a little
examined and left
being
Shelby county
eight
other counties
fur-
will be
“Coffee
there which said:
motion
judicial
district. The
same
County
by the
room
nished in
trial
transferred
was sustained and the
Attorney”; she said
County
Clerk and the
adjoin
county
to Guthrie
which does
the cof-
to Mr.
about
nothing
Greenfield
Shelby
district.
and is
another
nothing
do
and he had
fee or the note
attorney
county
Except that the Guthrie
matter;
had done
with
the witness
Shelby
sat at
table with the
the counsel
money left
years and the
this for several
purpose
county attorney
sole
coffee.
pan paid
for her
the little
em-
helping
jury,
him
select
gave
important
then
Shelby county,
witness
ployment by
pay
time this
testimony: “I
know what
don’t
part
in the trial and
the former took
Around
placed the note there.
morning I
take
small
he did
terminated
No, I do not
I
I
know.
suppose.
13. 9
don’t
at 3:45 March
selection of
my
knowledge whether
until 9:00 a. m.
know of
own
adjourned
Court then
morning. I rath-
jurors
that note this
day.
majority states the
saw
following
in,
up
hung
came
they
er doubt it because
began
March 13. A more accurate
*11
again.
placed the
there around 9 that morn-
right
their coats
went
I was
note
out
convene;
was
talking
jurors
ing
when court
to
she doubt-
the custodian and
they
any jurors
hung up
all,
very
ed
saw it since
didn’t hestitate at
and I doubt
added)
their
they
coats and left the room.
(emphasis
much if
saw it.”
contrary.
There
no evidence to
objection
No
motion to strike was
or
juror
There
trial
saw
any
any
testimony.
made
The bailiff
of this
prob-
stopped
the note or
read it.
It is
in the
also testified the note was not
any
testimony
able none did. There is no
previous day.
room the
It was
them drank
of
of
coffee.
summarized
record above
On
morning
in the
jury room
minutes
motion
defendant’s
trial court overruled
for mistrial
made
before
motion
new
his motion for
and later
for mistrial
majority’s
overruled. The
find-
soon
alleged
on
error
in
trial based
ing (in
IV)
its
there is “some
Division
were
After other motions
ruling.
first
assigned
sup-
in
merit”
error is not
upon,
ruled
introduction
made and
ported by
in
facts
the record but rests
jury began at
before
state’s evidence
largely
conjecture.
speculation and
on
necessary
presume
It is not
9:30.
majority
concedes we have consist-
the trial
because
were overruled
motions
ently
respect
held
misconduct
prejudice
improbable
it was
found
court
ground
new trial unless
is not
for
incident. The
the coffee
resulted
prejudice is
I don’t
shown.
understand
what was
he did not feel
declared
holds
made here.
showing
such a
improper
the ex-
or
done
Certainly there is no reasonable basis for
a new trial.
justify granting
it would
tent
court,
holding,
at
if the trial
such
least
trial,
a new
observed,
denying
in
He also
decisions,
repeated
in accordance with our
during the trial
several occasions
that on
passing
is accorded discretion in
on a
undue solici-
showed
counsel
claim of misconduct.
suggesting
jury’s
comfort
for
tude
and it
sitting quite a while
they had been
Poffenberger,
Iowa
a recess.
probably time for
by the ma-
cited
assigns
one error defendant
The number
jority,
many
precedents
lists
and oth-
overruling of his motion
is the
argues
support
er
authorities
this: “How-
ground of his
the same
for mistrial
ever, we do not reverse a conviction be-
hold
has
trial.
I would
for new
motion
cause misconduct of the bailiff
unless
an abuse
ruling was
either
not been shown
it probably
prejudiced
influenced
vested in
discretion
considerable
jury against the
the rendi-
defendant in
mis-
claims of
passing
trial courts
on
its verdict. And the trial court
counsel.
court official
conduct
at
passing
has
least some discretion in
is fundamental
This is a matter
a claim misconduct such
this.
Unless
yet
claims,
resolving such
appears
abuse
of discretion
we will
Divisions
it in
its
completely ignores
both
ordinarily
ruling
disturb
on a
its
motion
I and II.
ground.”
for new trial based on such a
(emphasis added)
that the
pointed
first be
out
should
complaint is
main basis for defendant’s
Faught,
like effect is State v.
To
typewritten note near
placing
1124, 1133-1134,
March 14.
morning of
the coffee
431-432, (also
citing
cited
the majority)
county attorney”
Defendant
“the
concedes
Poffenberger opinion.
coun-
the note referred was
Guthrie
part in
stated,
his limited
A note
10 Drake Law Rev.
ty attorney. As
129-
previous
Jury
afternoon.
entitled “Misconduct
Members
ended
many
supposed she
cites
this:
she
Iowa”
decisions
The bailiff
testified
repeatedly pointed
We have
out
the misconduct
form of
“Whatever
nearly always
position
trial court
than we
better
rule
may be,
general
one
cases,
e.,
advisedly
are
justify
to rule
on motion
new
i.
applies in these
ground
miscon-
trial based on such a
miscon-
because of
granting a new trial
Yet,
rea-
duct of a
counsel.
appear
court official or
it must
jurors,
duct of
*12
pointed
in-
Jacobsen,
grant
as
in
the
of a
that the misconduct
out
sonably probable
not new trial
must
A
trial will
even
the former
new
the verdict.
fluenced
upon
suspicion
rights
the
based
the record. Mere
unless
granted
for misconduct
materially
extravagant
and such
misstatements of
party were
complaining
the
the
appears, no
as that the
here furnished
element
Unless this
record
affected.
jury
regardless
enough.
the
an “honorarium” are not
granted,
trial will be
new
may be.”
is followed on this
conduct
Gamber
reprehensible the
how
Jacobsen
point
Springer,
in
Estate of
than
in
to be-
juries
more faith
I have
110 N.W.2d
and Lubin v.
probably influenced
lieve this one
City,
131 N.W.2d
in the ren-
prejudiced against defendant
765, 767.
it
by anything
dition of its verdict
cof-
lady
regarding
did
shown this
bailiff
majority attempts
to defend its
majority
fee,
I
the
don’t understand
holding in
I
Division
as to
prejudice was
thinks
such influence or
assigned
by professing
first
error
fear
the trial court
stated,
either. As
shown
stands,
independence
that if this
the
verdict
justify
as would
prejudice
found no such
jurors
zealously guarded,
the
will not be
a new trial.
average
faith
the
citizen in the
courts
will be shaken and the verdict here will
Gamber,
101—
Jacobsen
suspicion wrong.
be imbued with
grant
the
149 reverses
experienced trial
trial
an
of a new
my
majority’s
It
view the
decision
guilty
the bailiff
judge
thought
who
bringing
will
about such
come closer
jury
unduly hastening the
misconduct for
majority professes
the
fear
results as
the
in
This from
reaching its verdict.
than
an affirmance of
would come from
ap-
opinion
repeated here: “It is
may be
by ample
it
verdict, supported
this
point
parent
us at this
before
guilt.
See United States
its fair
is whether the
was within
court
acres, etc., D.C.Md.,
F.Supp.
72.71
a new trial for
granting
discretion
precedents
majority
cites
404. The
thoroughly
It is
reasons stated.
quotes
I are a
from
its Division
large
a
dis-
that the trial court has
settled
cry
present
far
from the
case. A brief re-
for new trial.
granting
cretion in
motions
they bear no
view of them demonstrates
legal
a
unlimited.
But this is not
analogy
fair
to it.
discretion,
only
exercised
and can be
Faught, supra,
In
(citations) We
sheriff
judicial
sound
reasons.
deputies transported
grants of
and two of his
hesitated
reverse
have not
jury
room,
jury
during
their
their
order was
new trials when the
court’s
deliberations,
principles and
to and from
restaurant
upon sound
founded
they
together.
exercised must where
all ate and visited
reasoning. The discretion
record,
deputies
(citation)
The sheriff and one of the
were
be based
Ver-
key
lightly;
witnesses for
state and
former
be set aside
dicts should not
charge
investigation
the was in
of the
court,
proclaiming
basis
sworn
trial,
None of
officers was
grant
must be sure
homicide.
new
1962, 1966, re-
support its
as section 780.37 Codes
ground
shows
sufficient
is,
quires
charge
of an
of the
litigant
A
officer
exercise of discretion.
during
its deliberations nor had
trial,
to a fair
said,
entitled
trial,
permitted
separate
after retir-
(empha-
(citations)”
one fair
787.3,
ing
(See
Code section
deliberate.
added)
sis
him
attorney’s
for error
case was reversed
home where he was
Par.
3).
again
said as
overnight guest.
and what
an
As
instructions
other
precedents
majority’s
officers was so would
cited in the
Division
to conduct of
I on
point,
these facts
a retrial.
were shown
be avoided on
dispute.
Other errors
re-
also
Neville,
quired
Any attempt
trial.
new
to com-
attorney
prose-
county
who
pare
present
case to Stafford’s seems
transported a
gratuitously
cuted the case
too farfetched for discussion.
county
her
seat
juror between
days
three
each
all
way)
Miles
home (20
The remaining precedent
placed
Obviously
gratuity
trial.
Bloomquist,
cites is Daniels v.
obligation
prose-
juror
under
305-307, 871-872.
*13
opinion
largely
curiam
is
per
cutor. The
There
jury
after the
been deliberating
had
infra, 204
Lynch
Kleindolph,
based on
more
bailiff
than 12 hours the
called the
2, 55
Iowa
A.L.R. 745.
N.W.
foreman
jury
judge’s
from the
room at the
request
judge
and told him the
wanted to
Eggers,
L. Bank
Chicago
S.
J.
him,
gone
see
the
foreman
the
from
the
affirms
cross-examination of deliberately re- properly assume counsel of discre- ignores the matter Although it it was not an doing so and frained resolving trial court in the tion vested oversight. It reasonable conclude counsel, ma- of misconduct claim made because coun- such a motion was not alone misconduct jority such concedes lacking. grounds sel felt therefor were deprives de- unless reversible error our latest fair trial. One fendant of a proper point defendant has It is out Iowa, Levy, 160 N.W.2d opinions, represented here at the trial and concurring, thus justices with all widely are ex- counsel his choice who re- “we have complete rule: states the appellate practice in perienced in trial and part of held, peatedly misconduct on is not both civil and criminal cases. be re- generally for the will counsel incompetent. intimated counsel was it results in de- garded harmless unless here, leading precedent, applicable A mis- fair trial or in a priving accused of a promptly Mercer, the effect failure to move for justice. carriage of See State a mistrial where counsel is supra, misconduct of 154 N.W.2d Inc., Mills, Agans no mis- claimed is there has been General and citations” Since here, carriage trial court justice which states: point “Counsel for defendants were quotation on that of the last apparently argument present purposes. disturbed disregarded for They might
when made. have moved promptly for a mistrial then at the close Further, at four occasions we least argument. They elected to await the quoted approval this from 24A decision, jury’s they thought any indeed 1902(l)a Criminal Law § C.J.S. serious error had been committed. Like original (§ volume 24 Criminal Law C.J.S. powerless the trial are now pages 1902a “A will not 896-898): cause ” * * * grant relief, them necessarily alleged reversed because of ap the contrary, of counsel. On misconduct repeated in language Mongar This inclined, pellate against are strongly courts Barnard, setting aside convictions because mis 765, 771 and Lutheran Shover v. Iowa Hos- * * * conduct counsel. Misconduct pital, 716-717, regarded of counsel is as harm generally LaMar, See also supra, *** *17 less and not cause for reversal 957, 496, 151 Iowa N.W.2d 502. depriving where it has not resulted ac trial, miscarriage cused of a fair or in a of conceding prompt After rule that the is justice (emphasis added); by State withdrawal the trial court of matter Case, 1019, 1029, v. 1030, 247 Iowa thought prejudicial N.W. to constitute misconduct 233, 240; 326, 2d Long, v. 250 Iowa jury State instructing disregard and then the 335, 744, 749; Hess, error, majority N.W.2d State 256 it ordinarily any cures the 794, 800, 81, 84; Iowa county attorney’s 129 N.W.2d State asserts the misconduct Mercer, 261 Iowa 154 N.W.2d flagrant here it be thus re- was so could not 142; Levy, supra, State v. cites the Mercer from the minds well jurors’ moved opinion. have influenced the verdict. assertion some, all, general testimony all the the state’s but not exceptional case is such an the than de- motions to strike were first goes further sustained. inapplicable is rule opinion Our thus matter was refers to the evidence when the er counsel did fendant’s roneous1’- quite in- received: “The evidence was trial court presented to the character, m toxic judgment and in our position. with his then consistent beyond the realm possibility human if his stated, argued then As counsel that the of the mind was not jury poisoned improper cross- alleged to strike motion by the facts It admitted. resulted in incur not made were of defendant examination able prejudice. This permit evidence was forget would day jurors the next until go ted jury detail.” considerable re delayed making motion it and is the principal “and our case the of the matter basis for them mind while the claim prosecutor motion now misconduct of the I make the reason by the asking it can be overcome mere ques- of two unanswered effect of tions, the consider away reasonably neither of taking court which could cause infer defendant re- jury.1’ ation was sponsible unavailability for the of the Pol- thought defense counsel had is clear lock this, woman as a And witness. county at- of the claimed misconduct all complained of, cross-examination as to “toxic in character torney was so promptly fully withdrawn as soon as beyond poison the minds the court was asked so. to do by” its with- removing prejudice hope of phase obviously felt this Counsel drawal. 224, 232-235, Tharp, State v. general rule subject case 83-84, 138 N.W.2d re- holds there was it, exception to to, above referred overruling objection versible error in ato feel. The majority professes to hypothetical question expert witness only request promptly granted the an important assumed fact not because of during defendant made evidence and that the error —which the and I would hold alleged misconduct state admitting conceded —in the evidence overruling the assigned based on error instruction, upon was not a jury cured is with- ground for new trial on this motion case, disregard submission of out merit. answer if the found the facts assumed were not established precedents in the ma- As with the cited erroneously evidence. The answer received support jority’s the conclusion Division I to argument stressed in the final state’s reached, II those cited in its Division the jury belatedly withdrawn point. Brief review follows are not finding condition above Iowa cases cited. jury was made. Brundige, present case no fair resem- bears 920, 921, of mis- claim N.W. involves no Tolson, blance State v. but there were reversi- conduct counsel fla- one of most and in- rulings errors in on evidence ble grant persistent prosecutor mis- cases the incom- structing jury. None of reports. Long, conduct in our See State v. petent to which the re- supra, fers withdrawn until the close 747; Mercer, supra, 261 Iowa only part of it was stricken. trial and then Haney, Baysinger Iowa, Paden, Moon, conspiracy case which record *18 incompetent of overt acts was re evidence was well filled with N.W. proper objection over and motion to ceived errors of the trial numerous persistent prose- At the close of strike made and overruled. court and efforts of view, state- it here opening minority will be treated as cutor, commencing- with his majority. it the com- if written for get to before jury, ment to accused many by the crimes of mission Although majority admits there is comment charged. See the one other than evidence defendant entered the sufficient Musack, 254 in opinion on the home,by entering breaking and Musich 527. commit Musich at intent to an assault 1073, 1075, 203 Poston, 199 Iowa State time, on the it clear its decision seems the conviction reverses part in assigned final error from its stems in prosecutor prejudicial misconduct of assent, unlikely belief it is did not the latter refusal persistent respects and his several entry. expressly impliedly, do I even ruling to abide not share this belief. evidence on as for jury, well in to argument majority which the circum- asserts Canalle, State instructions. error extremely the entry stances of “were un- refuses 221 N.W. largely that is usual” of authority of to a conviction on reverse overlooks evidence which state’s Paden, supra, and Poston, State v. course the believe. right had a to is present case precedents. The two other than to brought to State v. Canalle closer was out on defendant’s direct much And for Canalle counsel previously State v. Poston. examination had been con- soon a there as promptly felony' for mistrial properly moved victed of a matter to be —a occurred, some misconduct in passing credibility as the claimed considered DeRaad, Iowa, here. witness. thing not done 112. prosecutor The misconduct 331, in Gill, shortly The state’s evidence is that after incompetent jury much getting before the eight question the evening there was conduct criminal of immoral and evidence knock on main door of the closed wholly the crime unrelated home, he opened put Musich the door and far ex- so charged and remote therefrom door, against his hand was storm asked surprising anything done here it is ceeds Musich, if he Bob .answered that he precisely “not majority concedes is was, the visitor if he could come in asked point.” Musich, talk reply the latter did not (this repeated), turned to look in- holding majority’s agree with the III. I side toward his I wife and children. “As support sufficient evidence head, screamed, my my I turned wife .ample. I think verdict. just was struck on the I was head. inside White, from State This doorway The per- when I struck. re- 1002, 151 N.W.2d then came son into the house struck case peated “In a criminal here: trial of times, knocking me several me floor.” proof is or should the basic they beyond a reasonable doubt Mr. and Mrs. Musich testified never person, guilt.” saw the conceded to defendant, before. evidently Defendant felt final merit in defendant’s There is no necessary inquire occupant if the in- assigned giving error There Musich. is no evidence defendant defend- and 14 refusal of structions 10 revealed his name or otherwise identified lieu No. requested instruction ant’s himself to Musich. my understanding is this Although (most III) opinion Division Under these and other record facts it is dissent written not concurred unlikely Musich did not consent de- expresses entry the court so fendant’s home. into his *19 with regards lived the law equal adult brother force Musich’s and fraud with Mrs. * * * “just abhorrence, after left the home He the Musichs. the door came to and defendant 8:00 "Where lias entry been under effected Musich) closed (Mrs. I seconds. about two n withthe pretense having business owner of when de- just and had sat down the door visit, or paying a social it has been well of to the came door.” fendant said that the impotent law is not so as to permit burglar a to enter house under a testimony even under defendant’s But such circumstances and re- yet evade the enter the home him he could Musich told sponsibility his act.” (emphasis added). do him to opened the door for storm ample which so, there is evidence Burglary 9, page contains § C.J.S. given find valid consent could person this: “Although may a enter a persuasive There is enter. defendant to all, without breaking house actual at by entry procured such evidence door, through open and even the cir- he that representation false cumstances be such as to make real with when his talk Musich desired to entry breaking, a ren- constructive so as beating severe purpose to administer a guilty der him burglary. is Such occupant crossed to the because he person by case when a entrance effects an up around picket line union had set conspiracy. fraud or A punishing statute At custodian. plant where Musich was anyone shall ‘forcibly who break and en- beating a testimony is such the state’s least ** * applies ter’ entry when an is turned Musich as soon as was administered trickery by deception, effected or so as .an- without wife and children toward his constitute a breaking constructive com- at enter and request swering defendant’s law.” mon except him talking The'majority Burglary cites 12 C.J.S. previously asked Musich’s name. had 12, pages 675-676. The citation reads: § beating, the to the state’s As "Except in cases constructive break- times Musich several defendant struck ing entry where an by or effected fraud pocket, on a taken from his blackjack intimidation, as has been shown 9§ was a button inches end of 1¾ supra, there can be no breaking, and there- all, size, knocking the floor. Musich to burglary fore there is no where the occu- struck, a raising or blows were six seven * * * pant house, expressly of a large head as side knot on impliedly entry.” invites or consents finger. a man’s and as thick as half dollar (emphasis added). purpose obvious completely has overlooked permission to the home asking enter language italicized beginning at the no reason talk Musich he had merely -to this section 12. Mu- blackjack Mrs. himself with armto annotation in 93 A.L.R.2d .also from his pull him testified she saw sich majority, cited reaches the same jeans her husband. to strike slightly result under reasoning: different home entry The law is clear “Also, implied where the consent enter legal is the procured by of fraud means specific is limited purpose, to a entry constitutes entry equivalent force consent, purpose a different is outside the Am.Jur.2d, breaking. a constructive (citations) pages 328 Burglary, section applicable ingredients law: “Construc- “Where the in- burglary, thus states burglary cluding breaking the law breaking entry within forcible with an tive steal, accomplished intent entry proved, implied where occurs building so because consent to enter the burglarized *. This is fraud means of *20 48 night in that if on the limited, purposes not a defense substance lawful thereof, in gained the (citation)” admission to Musich charge
to a representation he home on the false de- the con- precedent on law of leading A sired to talk with when his real Musich in both breaking, cited structive Am.Jur.2d beating him intent to administer a was opinions as later C.J.S., supra, as well and therein, breaking and constitute 416, State, 32 N.W. 68 Wis. is Nichols entering as defined in 708.1 Code section that makes clear 543, The case 545-546. 1966. representation false entry procured the majority a holds 10 make The instruction he desired to the intruder that prejudicial in- in really stating “breaking error and call when or business social against a entry entering” commit must be the consent of at the time of tended “express occupant, our the without adding under felony (it public “a offense” implied” perhaps may burglary both at com- that consent statute) amounts to implied conduct. similar from circumstances or and statutes law under mon ours. So far as concerns the refusal of the Keys, 244 Or. See also requested in instruction defendant lieu of 944-947, majority, the cited P.2d complete No. answer and, like approves v. State Nichols which assigned that error No. 10 told Cooley extensively Nichols, quotes from fully request much about consent as Blackstone, IV, pages 226- Book ch. request given. would have if The does not 227, including this: implied refer to the matter of consent right circumstances. court had a door, upon at and also to knock “So request assume this formal in- in, with felonious opening it to rush n struction on consent defendant desired. It lodg- intent; pretense taking or under request is not was not contended worded landlord rob fall and ings, it should defendant’s counsel intended * * him; entries have all these If, holds, be. as the instruction though there was adjudged burglarious, error, prejudicial consent law will not suffer breaking; actual error invited defendant and he evasions, by such itself to be trifled * complain. repeatedly cannot >> We so comparable held under factual situations. opinion Keys contains this: also requested Defendant’s instruction states ‘breaking’ as used “Since word convict, twice that order to with reference to the common law must find not home access fixed burglary crime of had a definite occupant was against the consent fraudulent and sur- meaning which included knowledge. without his also Instruction rule entries, reptitious it is the established request only from the differs not ‘breaking’ term legislature that the used requiring finding of knowledge. of lack with reference common-law sense its majority concedes, knowledge by As the burglary.” (page statutory crime of occupant entry is no defense to 945) charge breaking entering and in- properly requirement struction 10 omits this Keys other authorities request. given To have it would support its decision. majority cites do have been error to the state. does Defendant contend otherwise on has been said from what follows appeal. Abley, See State v. more favorable 14 are instructions 46 L.R.A. he was entitled to to defendant than Stodola, breaking. law constructive ignoring the have been told jury might properly Inc., ap- considering the authorities Before citations; 465 and Col question, A.L.R.2d assigned error plicable to Krabill, little, any, burn 3 N.W. observed citations; prop- 2d could evidence from Am.Jur.2d *21 .ce, 355, page Evidf section entry the home into erly find defendant’s Musich implied consent. was with Musich’s by attorney sought county to show out, pointed that testified, previously as why he turned look inside at Musich to permission to enter asked defendant when family. objected his wife and Defendant latter the witness the to talk to the home this “as irrelevant and immaterial. to at his reply but turned look no to made bearing upon no the issues.” has The ob- wife and children. jection objection sustained. No question. Defendant, however, “I form To said made to the testified you?’ turning I can’t now that look talk to contend Musich’s to ‘Can I come family, answering I at his yes, but wife say (Musich) he said whether request enter, proceeded defendant’s to is evidence sure, yes, ‘Yes’ and am he said implied consent is a from conduct the and let me in.” open door position change of here from that taken conflict clear Thus there approved. should at trial which not be as Musich consented to whether where, many pur- We have held that as entry even for avowed times here, requested pose talking jury If substance instruc- to the former. given instruc- tion covered in and followed instructions believed defendant would, entry request. it is not error to refuse the presumably his as it period. 79, 86, DiPaglia, v. 71 clearly be with consent N.W.2d would 601, 605, 49 jury find that Musich’s A.L.R.2d cert.den. 352 Surely the 549; letting in U.S. 77 1 L.Ed.2d opening the defendant S.Ct. door Wilhite, 129 entry “against not be Shank house would citations; occupant,” plain Wagaman within consent of Ryan, meaning though 10 even of instruction McCalla, Henneman amplified by adding instruction was not 452-453; “express Hartwig implied” “express im- or or or Olson, Iowa, 87-88. plied from circumstances.” I share do not majority’s fear would not Trial, Am.Jur., page section given from instruction as understand long rule contains this: “The has been es- in, opening that let the door to defendant tablished line of judicial unbroken done, if this were would amount to consent authority re- give the refusal enter, merely implied not consent instruction, quested though it even states conduct. law correctly, does not constitute ** substantially circumstance a claim error if it is from which covered implied possibly urged given, everything instructions consent if testimony that requested comes from Musich’s instruction which when party already defendant asked to enter the wit- entitled to have given home the has given by ness turned to look at his the court wife child- in other instruc- tions.” testify (emphasis added) ren. Defendant did not he con- sidered or believed this indicated consent many testimony sup-
to enter. does Under the authorities cited and Nor other port claim such to like effect I would hold belief. When belief others error refuse a witness relevant and material he not to defendant to may testify directly requested instruction. author- thereto as See also other Electric, fact. ities cited infra. Plbg. Williams v. Stroh & holds, murder, degree states conviction for first true, If it were instruction, regarding an “The error given constitutes instruction 10 as requested be so instructed might be enter stating that consent to heard com- al- and therefore cannot be circumstances implied from conduct plain. (citations)” See made mention request though the error was invited proposition, the such Glaze, position suc- and he is in no this: (Salinger, J.) contains long A line of cessfully urge it here. plainest considera- “II. authority well as Instruction court, that, the trial proven eight fairness to told the state had tions of state, support this specified beyond mention fairness to essentials a reasonable *22 doubt, guilty. Ap- view. should find defendant pellant eight asserts that these were alone instruction, requested his quoting After sufficient, not and that were other admits in for defendant able counsel essentials which in are not enumerated the state- as a result “Doubtless brief: * * * the instruction. If this enumer- cotmsel, the court then inserted ments of ation does not embrace all that should *.” instruction 10 on consent proven, appellant have been com- not have been to reference to counsel must plain. given The instruction is a substan- defendant’s counsel. copy 2, tial of Instruction de- offered Ormsby, Campbell v. 65 fendant.” As far back held, 656, 657, 518, 520, 22 we Iowa N.W. 636, Ellington, 643, State v. 200 Iowa quote the first headnote: 307, 310, (Faville, 204 C.J.) N.W. states: Asking “1. Practice: Instruction “Complaint is given made of an instruction defendant, of Error in. Where Waiver upon good court jury, asked the court instructed before Appellant requested character. an instruc- given, to be which certain instruction subject, tion on this and the instruction as form, but give did the court given by complied the court substantially effect, to the same gave another instruction requested with the instruction. The court not, appeal, held that defendant could might enlarged upon well have in- complain instruc- heard that such ; struction it was not erroneous as was erroneous.” given, failing court did err in amplify beyond provisions opinion: “But this is from Also requested instruction. The instruction as permit (appellant) him law will not given was not incorrect.” pursue lead the this course. He cannot by assenting into an error Odegard Gregerson, 325, v. 234 Iowa an instruction in which doctrine of 332-333, 559, 12 (Wenner- N.W.2d 562 found, error is this court seek strum, J.) quotes approval from ground judgment reverse the on the Campbell Ormsby, supra, 518, error, (citations)” 22 N.W. 657 and cites several Campbell Ormsby repeatedly has other Iowa decisions holding for the opinions. followed in later our party who leads the trial court into what he claims is error will not be heard to com Wilson, 264, 267, State v. plain appeal. thereof on To like effect J.)
N.W.
(Sherwin,
contains
Corbin,
In re Estate
661—
was,
substance,
this:
“Instruction
17 N.W.2d
421 and citations.
defendant,
asked
and she cannot now
(Mantz, J.)
complain thereof.”
Watkins,
568, 126
Beckwith,
J.),
(Ladd,
which affirms
(Hays,
J.) in affirming a
murder,
govern
here
rule which should
degree
first
death
judgment
Iowa,
applied
Sage,
“Defendant
concurring, holds:
justices
all
502, 504.
court’s
predicate error
now
cannot
requested the
they
very thing
doing the
Although
instructing
claimed error
do.”
court to
by appellant
which was invited
involved, the
here
principle
was not there
Beckwith, 245 Iowa
Hackman
contended
clearly recognized.
for was
J.),
(Thompson,
Sage opinion:
This is from the
exception was
proper
finding no
after
clearly
the trial court
advised
taken which
Rasmus,
“In
complaint as to
instruc-
appellants’
quote
ad-
proceeds
hold:
"In
given,
tion as
what
24A
is now
Criminal
C.J.S.
dition,
requested Instruction No.
appellants’
pro-
party
Law 1842: ‘A
to a criminal
§
meaning identical
in substance and
6 was
ceeding
posi-
cannot assume inconsistent
to which
given by the court
with that
and,
appellant
tions in the trial and
courts
elementary
made; and it
objection
now
rule,
general
permitted
aas
will not be
error which
complain
cannot
litigant
* * *
allege an error
assented.”
he has
invited
to which
he has
acquiesced,
himself
or which was com-
Hay
v. Merle
added.)
(emphasis
Knudsen
him,
*23
mitted or
invited
was the natural
279, 285,
Plaza,
Inc.,
160 N.W.2d
Iowa,
consequence of his own actions.’
approves this.
applied
varying
“We
have
rule to
appear
Iowa, 392,
situations none of
more com-
Hammer,
v.
246
In State
application
case
pelling for
its
than the
(Smith, J.)
399-400,
494
66 N.W.2d
Hammer,
Citing
bar.”
v.
State
at
State
complained
appeal of the ex
on
Osborne,
v. Beckwith
v.
all su-
and State
would be
evidence he contended
clusion of
Rasmus, supra.
pra, in
v.
addition to State
competent
vital
evidence was
pointed
out
issue. We
opinion
The
refers
rule
Rasmus
objec
defendant’s
at the trial on
excluded
quoted,
repeated
Sage,
there
in
“Manifestly defendant can
held:
from
as a fundamental one.
C.J.S.
We must hold he
hot
cold.
not blow
supporting
here
into which he
the views ex
an error
Other decisions
cannot assert
pressed
opinion
Tilghman
Chicago
The
include
the trial court.”
v.
himself led
above
Co.,
approval
1339, 1350-1351,
v. Beck &
quotes
from State
N.W. R.
with
841, 845,
citations;
with,
supra, 53 N.W.2d
115 N.W.2d
State
Adams,
precedents.
and other Iowa
339 Mo.
S.W.2d
State,
838, 845;
A.L.R.
Starkweather
Osborne,
State
625-626;
167 Neb.
fully
this which
contains
Burd,
N.D.
Hoffer v.
supports
point
made:
now
282, 293;
Crary, N.D.,
142 N.
Hook
W.2d
are
an accused is entitled
“We
satisfied
expressed
heretofore
The views
are those
instruction,
requested,
if
to
effect
an
example,
prevailing generally. For
5 Am.
presump-
testify
his failure to
creates no
Error,
Jur.2d, Appeal &
states:
section 719
against him.
adverse inference
tion or
*
**
event,
“The
of invited
has found
giving
such
doctrine
error
instruction,
demanded,
application
regard
give
would
wide
with
error
an
if
party may
A
ask
right
complain,
later
instructions.
not
for
an accused
for
appellate
an
error,
giving
any,
complying
review
error
requested,
himself
then
invited.
instruction which he
request
been
Hammer,
substantially
which is
identical with one
(emphasis added.)”
su-
* *
*
requested by him.
pra,
approval.
is cited with
v,
N.
Horrell,
invited error as
in-
in this
any jury
entry
could find
under such cir-
must
specific
instruction
additional more
“against
cumstances would
consent
timely
His failure
request therefor.
make
occupant.”
majority’s
Yet the
fear
complaint
him without
so leaves
to do
this jury may have so found furnishes the
and cases
Wessling
v.
upon appeal.” State
principal
finding
basis for its
“some
Russell,
supra,
both
cited
v.
and State
merit”
assigned
in this
error.
authority.
given as
are
majority
precedent
cites no
which
upon the
Perhaps our
decision
need
latest
supports
holding
its
in Division III under
instruction
request amplification of an
any such record as
here.
have
State v.
we
129,
McNeal, Iowa,
N.W.2d
v.
158
is State
205,
Manning,
210,
345,
149 Iowa
128 N.W.
Hardesty,
approval the
cites with
134which
347,
Jensen,
supra,
245 Iowa
supra.
opinions, all
Wessling and Russell
1363,
fully support
238 26 majority says Iowa re- on which the N.W.2d quests important obliged for an an sug- instruction to reverse. is it on Nowhere gested issue were refused and instruction to' relief under entitled subject Here, course, their given. majority section It 793.18. seems the has way given go instruction consent was in sub- seen fit out of its to reverse stantially language requested. In both this conviction. Wilson and Rowe serious error also other Kelley, 1314, 1318, State
required reversal. 184, 186, (Thornton, J.) N.W.2d affirms a Cox, degree
Of death sentence for State first murder. 616, 619; Cusick, opinion quotes N.W.2d 793.18 section and fol 554, 555, Iowa cited lows with this: 84 N.W.2d IV, in majority’s and cases Division placed duty “The on this sec- proceeded where we have under Code sec- tion appeals 793.18 is to decide criminal ac- reverse, majority 793.18 does cording very justice of the case as IV, Kramer, here in Division State shown regard record without points errors, requires technical (citation) cases, out: “But these were extreme such judgment us to enter as the law de- each amply of which the record showed (citation) mands. And are con- not to that the trial.” not had fair had sider mere technical which errors do (emphasis added.) result, (citations)” affect the says Kramer opinion What the as to the quoted repeated Most language purpose might effect of section 793.18 Ford, supra, repeated also well here. Kramer 642. approved case has been several times as Ford, recently as State v. It is not all clear obliged at court is under section 793.18 judg- to reverse this Horrell, my ment. assigned view the errors which majority finds some merit are majority IV. The finds “some merit variety the technical which have not Al- assigned each of defendant’s errors.” been shown to affect the verdict. sustain-, carefully though it refrains from ing any merely them and holds that the Larson, Stuart, JJ., join Snell and in this assigned effect of the three cumulative dissent. deprived defendant of a fair trial errors which, requires 793.18, section a new under Mason, joins J., of Division one. I do understand III commencing of this dissent with the sec- quoted includes statement defend- complete paragraph 2, page ond in column in- assigned ant’s third error as to claimed many times starts: “We held guilt sufficiency with ” * * * ending statement *26 expresses which it disagreement. near page “It middle column 53: instruction,’ briefs was not ‘an pages in the 80
Nowhere additional arguments appellant theory sug- the'majority asserting.” is the insists on