*1 July 14th date of order no abstract of tions; and that to purposes, nor title delivered for examination one has ever been appellee’s is certified to a date later than October duty, appellant’s, to have abstract continued to date of the expense delivery deed, showing of marketable title. If extra incurred, to appel- therefor is the record shows same to be due perform according lee’s refusal to terms of contract. expense. Appellant He alone bear this added entitled must title, abstract of certified to date sub- examine sequent filing conformity of a decree in to the date with opinion; appellee, this with. a reasonable time to correct de- appearing title, any, in the if fects a tender deed, together warranty abstract as of the date of the certi- title, payment fied abstract of receive of amount due him, as set forth above.
VII. The trial court half of appellant, taxed the costs to which assigned as error. appor Under entire record fair fifth tionment the costs would be one of the district court appellant appellee. costs to and the remainder to Costs this appeal appellee. are taxed to
Cause reversed with to enter directions decree accord- ance herewith. —Reversed and remanded with directions. J.,C.
Wennerstrum, Bliss, Garfield, Oliver, Smith, Thompson, JJ., concur. Mulroney, Guy State of Iowa, appellee, v. Donald Collins, appellant. No. 48560.
(Reported 31) in 69 N.W.2d
March 8, 1955. May Rehearing Denied Lawyer Moines, Hise, appel- and Don both of Des for Yerne lant. Attorney
Leo Hoegh, General, Raphael R. Dvorak, R. As- Attorney sistant General, Clyde E. Herring, County Attorney, County, Polk .and Lorentzen, James A. County Assistant Attor- ney County, of Polk all of Moines, appellee. Des J. On June shortly after 9
Smith, p. o’clock m., stopped defendant was driving arrested while his automobile Iowa. Moines, Thereafter, Des being charged under section operating 321.281 motor intoxicated, vehicle while pleaded guilty. He was and appeals convicted from the re- sulting judgment. The appeal presents but one -improper claimed cross- error — defendant, eliciting the fact that he had once
been in Boys. Eldora School for We need not set out details bearing the evidence his alleged criminal con- duct.
The cross-examiner first elicited that defendant was born in in 1922 Dallas Center and left there when he went into-service in 1942. After some examination bearing his contention that not he was intoxicated when suffering but phys- from arrested by prosecutor ical attack unknown some assailant the commenced question him to to as where he had lived and whether he had been “away pages from home.” Two of the record are devoted to this part of the cross-examination. The witness said he had been “in for with a mine”, Dakotas awhile cousin of had visited his Arkansas, Bluff”, Pine “sister etc. point replied
At one the cross-examiner to an objection as to immateriality: purpose “For of examination of the credi- bility of the witness.” point-blank:
Finally w.as asked the witness “You don’t re- any place particular you member were 1940 other than maybe in visiting your at sister’s Objection Dakotas?” urged overruled, saying which the court “Ordinarily the gone credibility be into.” The can witness then answered: “I was Boys.” for Eldora School to Prompt motion was made strike the answer and the court jury disregard admonish the was asked to it. The court said: County Attorney “I that the knew exactly assume what the going and at once be” recessed answer the case. After presence “I jury, not in the of the announced: court, recess however, argument, for mistrial.” After a motion will entertain mistrial was overruled. the defense motion for extremely presented but question is a narrow I. The 622.17, Code, 1954, provides Iowa one. section troublesome Code of interrogated previous conviction may be a witness bearing felony. statute has here. That permits point. more in It 781.13, Code, Section own (“when he in his testifies strictly confined behalf”) State shall but warns that “the testified to in the examination chief.” therein to matters expressed purpose of the cross-examination The sole credibility attorney the de- was to test the prosecuting here disprove clearly was to' contradict as a witness. fendant The record anything to on direct examination. testified in chief that he testified on his examination not show does I years past history except: “I am 31 old. was anything as to his Pacific. I South 1942 to 1946 and served from service seven and' have worked there the Iowa Pack employed am at years.” testimony on of his direct examination
The rest concerned up leading preceding his arrest: “I events worked I planned home. had a fishing trip noon and then went until day my going get fishing home and equipment next and was go. going I was with Howard ready to Mattix .and Gene Fees employed.” at Iowa Pack I am work where who both He then and wife at the visit himself the Mattix home tells nothing to drink with evening: “I had the Mattixes and left * * * go see after 7:30 Gene sometime Fees. I met Mr. *4 * * * I of beer and drank three bottles left. Previous .and to Fees drink. nothing had had to I that him I left walked out the door and I the main thing
“When somebody up hit me side of the head is that and I was I know on I After that I and don’t-. don’t really know the sidewalk I I don’t know what was hit happen. with. I suffered did what my my on face and left hand I and scratches cuts some I my cut chin and when arrived deep on down at pretty one bleeding. just still Whoever hit me was dis- police station might somebody me for that. He mistaken appeared .after figure I have only thing I can out. something. or That is else of over going I habit any in don’t make a trouble. never in portion that of town. stopped I on really I was thing remember “The next that police 9th officers.” East testimony in gives
The rest of his chief explanation of presence beer bottles his ear and something phys- of his serving and dental condition since ical Pacific. only possible legitimate purpose eliciting for on cross- fact of residence suggest at Eldora was to to jury (in a reason addition his obvious interest in the out trial) disbelieving of the for testimony come defendant’s chie a, words, question
f—in other
his credibility m
But
witness.
unfortunately,
possibility
back of
was the
discrediting
a
making
him as.
probable.
his conviction more
possibility
Such
when
defendant becomes a witness was
supra.
section 781.13,
doubtless
reason
Code
See State
Yarham,
833, 837, 838,
Iowa
Defendant was born
1922. His
“residence”
the Train
ing
years
was in
School
thirteen
trial of
before
the instant
approximately
He
eighteen years
case.
was then
only
old. The
explanation
being
given
of his
there is
in his redirect examina
* * *
“My
separated
:
tion
father and mother
I
when was five.
My
granted custody
father
only
me
was
supposed
and I
* **
stay
my
with
mother on week
years
ends. As the
went on
stayed
my
I
with
supposed
mother more than I
my
to and
paroled
had me'
up Miller,
Dakota,
dad
my
South
cousin
up
I
supposed
stay
there. was
my
father but I was not
doing
My
that.
up
father took
got
me
and I
Dakota
home
* * *
* * *
again.
picked
up
the sheriff
they
me
Adel
sent
disobeying my
me to Eldora.
was the result of
just
father —
living
supposed
with him
when was
to.”
No
given
concerning
instruction
or asked
testimony
this
elicited
cross-examination of
defendant.
record as it
any
does not
dependency
neg-
stands
indicate
serious state of
or
232.2,
Code,
under section
delinquency
lect
or
232.3,
purpose
Code section
as the reason
under
his commit-
boy
Undoubtedly
ment.
be sent to the
School
*5
but
which, understood,
if
reflect no discredit
under circumstances
eyes to the
we
close our
Nevertheless
cannot
only misfortune.
stigma to the commitment.
attaches some
general belief, which
320, 323, 101
Wasson, 126 Iowa
v.
II. The State cites State
charged
rob-
defendant,
with
1126, in which case the
N.W.
questions
former
asked
as
bery,
on cross-examination
information from which
occupation “which elicited
residence and
of the reform
been an inmate
that he had
might
be inferred
“while it was not com-
opinion held that
at Eldora.” The
school
testimony,
had the
by
the State
that fact
direct
petent to show
subjects
both
the witness on
to cross-examine
[former
although might
disgrace
occupation],
tend
residence
Pugsley,
plained of referred defendant) awaiting trial on an indictment (not the witness did the fact elicited larceny. properly held there that question of remote- credibility witness. No of the bear was involved either case. ness announcing unquestioned cases cites numerous The State of witnesses to test principles to cross-examination general quarrel impeach credibility. We have no memory their their they helpful they announce. But are propositions here. us jurisdictions from cited other
Nor are the cases Rep. 221, Cr. 195 S.W. Henley State, v. 81 Tex. decisive. by probation that a witness had error to officers held it show question of cross-examina incorrigible No child. convicted as trial was involved. of the defendant on tion 799, State, In 123 Neb. Witt Nebraska testimony Supreme held irrelevant that two of the State’s Court had been committed the State School for witnesses Again question of defendant was Girls. involved. *6 553, People, App. 555, Daxanbekler v. 93 Ill. the witness “ directly you cross-examination, was asked ‘Were ever ” appellate upheld
reform of school the state Iowa?’ The court sustaining objection question: only the trial court in “It is conviction of an can be shown for the infamous crime which purpose affecting credibility of a witness.”
We that are mindful the trial court has a considerable in passing materiality propriety discretion of cross- on the and designed wit memory credibility examination to test the But in nesses. case is the defendant criminal where the witness already provides on trial, (Code 781.13) our statute section cited the, (what probably be would rule that shall anyway) be the strictly matters confined testified chief. think
We judicial abuse of discretion here. thought commitment to what is still of as the “Reform School” was too in time to remote furnish reliable criterion by credibility which to test the of the witness and proper was not testimony cross-examination as related in chief.
III. prejudicial? Was error Were the proceedings civil criminal, instead of or the witness not the defendant, might we easily duty answer “No.” But the of the court protect right charged of a defendant with crime to a fair impartial give pause. trial Knowing should us lawyers as we indulge do we suspicion that had the witness not been the defendant the prosecutor would not go have bothered to into teen-age his- tory. (Mindful prosecutor’s problems however, say it- we implying censure.) The without reaction the trial court was significant: “You no whatsoever to show this man * * * j prejudicial in Eldora is error, my that opinion. don’t think it can even be cured admonition at point.” this possible prejudice It is prefer there was but we not to speculate it. on Had the indictment been for specu- murder such unthinkable, legal principle lation would be but the here must be rights duty the same. The defendant’s and our are same, regardless charge. of the nature of being appear, prejudice
“Error made will presumed, Wheeler, 100, 106, the rule.” N.W. 927, 929. In 240, 111 N.W. 134 Iowa Nugent, 376; State v. errors only technical “In criminal cases is said: the latter ease rights defendant are of the which do not affect the substantial 613, Asbury, disregarded.” In State to be pre “error it was said 1918A Ann. Cas. because of reversed case prejudicial”, to be sumed eliciting matter thereby in cross-examination of error inherently inadmissible. must however be conceded our court has no fixed always be prejudice presumed, that will nor rule should have. say per criminal fair to where error But it is ease prejudice arouse against a matter calculated to defend tains to *7 holding be in ant, nonprejudicial. should cautious to be we given regarded shall error a case be as harmless “Whether particu depend often on the appeal circumstances of S., J. rather than on definite rules of law.” C. lar ease might 1887, page 841. Law, And “errors which Criminal section. regarded may not unimportant as harmless and be otherwise Idem, page in-close cases.” so considered guilt strong. here is not It must be said the evidence The testimony defendant was concede that whose convicted officers weaving lights, driving his car was not he was without while improperly except says traveling one “he was being driven speed speed rate of than the limit.” The same witness at a faster stop light following ran a were says “I don’t believe he while we him.” testimony bloody of the witnesses as defendant’s and support when arrested his testi-
disarranged condition tends entering and before he had been attacked beaten mony that night question my in mind that but says no One “There was car. somebody roughed up Mr. Collins to some apparently had what just he out of a like come said “he looked The other extent.” intoxicated on opinion that They base their fight.” appearance and physical and his on his breath alcohol smell of latter, one testified walk, though, as to the unsteadiness fair.” walk “his guilt or innocence of defendant arguing not
are We jury. do go say We sufficiency of the evidence nor guilt strong justify a pronounce- is not so the evidence prejudice. error was without ment that justice the ends of will be stated we think For the reasons by a reversal and it is so ordered.—Reversed. best served Mulroney J.,C. Wennerstrum, Oliver, Hays, JJ., concur. JJ., dissent. Bliss, Thompson, Larson,
Garfield, (dissenting) cannot J. concur in the Garfield, —I opinion. I think State’s cross-examination of defendant does him to There is claim the not entitle reversal. evidence experienced sug- Nor guilt insufficient. do his able and counsel strong. gest only not error defendant is the trial it is asserts grant acquittal mistrial or direct failure based court’s fact defendant testified on cross-examination he “w.as Boys.” Clearly, the claimed error Eldora School acquittal. directed do did not entitle defendant to a verdict major- Presumably holds it did. not understand ity’s is based on trial error what it feels court’s reversal sustaining defendant’s motion for mistrial. apparent that on his direct examination defendant history back carefully recited so much of his to 1942 as he and thought place light him in a would favorable before his counsel jury. “I live at 41st Street and have lived He testified: * * * July. years I was from 1942 to 1946 three service *8 employed I am in the South Pacific. at the Iowa Pack and served years.” Also, there “While in the South have worked seven as a disease known He further Pacific I contracted malaria.” any never examination, “I have been in trouble.” said on direct in examination chief entitled the to in- Defendant’s State though history, his at back to even quire further into least brought matter less favorable to him than may it have out a compelled The State was not to on direct examination. shown a verity. in chief as defendant accept what said possibility might discredit the cross-examination does the Nor witness, and as make his conviction defendant, well as him as a improper, render the cross-examination the probable, as more suggested majority suggests. majority consideration State’s to cross- abridging basis for no sound affords fully. If of an cross-examination examine defendant accused may nullify merely because it render a conviction to held to is be disadvantage in at an unfair the State is probable, it more charged those with crime. trial of insuffi- of defendant I think State’s cross-examination though direct, “I his basis for a reversal even cient .answer curny By showing on trouble”, disregarded. be been never history thought his part of to be favorable examination the direct opened inquire further into for the to him the door was to But when the last history, extent done here. at least ignores, considered answer, majority virtually is quoted which justify does not doubt the cross-examination can little reversal. unequivocal assertion defendant any was never in extremely statement relating broad
trouble to his past entire meaning plain. subject history. It is Its not interpretation It is not material what or construction. defendant have had making this answer. It in mind entitled defendant’s counsel jury argue to the the evidence showed his client had never I proper before. think it was in trouble been the State to show the statement was on cross-examination untrue. having
Defendant’s the Eldora school either fairly trouble, implies seems think, or it implication. If to no gives former, rise the cross-examina- disproved plainly contradicted tion this vital statement on If latter, prejudice direct examination. sufficient for reversal appear. not does 781.13,
The State did violate section Code, 1954, which provides: “When the testifies his own behalf, he subject shall be as an ordinary witness, but strictly state shall be confined therein to the matters testified to in chief.” explain, tried to
As have the cross-examination, if it cre- impression ated the fears did, strictly con- to defendant’s testimony fined chief that he had never been in any In clearly trouble. event was confined past examination, gone on direct into history
999 Further, repeatedly we uniformly up now, held notwithstanding 781.13, section “It is the well established rule this that, state when a a criminal action is a witness behalf, in his own footing any stands the same as other witness, in memory, so far as history, motives, his or matters affecting credibility his are concerned.” (Citing decisions, seven including v. Wasson, infra, State 126 320, 1125.) Iowa 101 N.W. Voelpel, State v. 208 1049, 1050, Iowa 770, 226N.W. 771. Numer precedents ous other to like effect include Friend, State v. 980, 989, 990, 425; Iowa 230 N.W. State v. Williams, Iowa 838, 850, 28 N.W.2d Watson,
State v.
651, 654,
Iowa
946, 947, holds the State was entitled to show on cross-examina-' tion of defendant that at bowery times he ran a jewelry and “a spindle” county at opinion says: fairs. “It has often been held that cross-examination inquiry may be made concerning occupations a defendant’s different places of residence. [Ci- The extent to which inquiry tations] be carried must necessarily rest the sound discretion of the trial court.” Kuhn, 216, 229,
State v. 230, 90 N.W. up- right, holds the State’s notwithstanding what is now section 781.13, to cross-examine a woman charged with murder of her as her husband relations with man, another to show her char- acter, develop a motive incidentally “and as matter of con- opinion tradiction.” The states: “Defendant had no right witness, pose on the loving stand as a and dutiful ifwife she was not entitled to that character.” So here defendant had no pose having on the witness stand as never trouble if this were not true. Brandenberger, 197, 204, 205, 130 speaking a defendant
1000 affecting Ms credibil- memory, history, motives, Ms matters held that tbe extent quite generally ity, says: “Again, it is in necessarily rest the inquiries may carried must wMcb such be sound trial court.” discretion Bittner, 109, 118, 601, 605, v. 209 Iowa 227 N.W.
State
upholding
first-degree
say:
for
a conviction
murder has this to
elementary principle that
for
“It is an
counsel
the State is
previous his-
privileged to cross-examine the defendant as to his
,as
conduct,
ways
living,
affecting
tory,
prior
habits, and
purpose
impeaching
and for
him.
credibility,
Watson,
651;
Brandenberger,
cited. its own “Was the error majority concedes, proceedings cial?” the civil in- “Were criminal, defendant, might stead of or the witness not the we easily (Emphasis added.) repeated answer‘No’.” But under our decisions, inquired about, the matter stands footing, notwithstanding 781.13, same section other wit- ness. Wasson, 1125, 1126, 101 N.W. by majority, proper
cited holds it was robbery) questions (charged ask a defendant that “elicited might information from be inferred that he which Nothing reform at Eldora.” the Wasson inmate of the school stay recent. opinion at Eldora was vndñcates defendant’s (sections 2708, decided statutes effect when the cited case was stigma would were more then 2709, Code, much 1897) Bldora school than to ordinarily attach a commitment to the law in effect juvenile court under a commitment Codes, Code, 1939) chapter now (chapter 1954). Wasson, supra, Bl-
Further, when State
was decided the
commonly thought
spoken
of as
reform
school
dora
opinion
it. The
The Wasson
so refers to
statutes then
school.
In 1940
to it as the industrial school.
the school
referred
now
Boys.
School
Defendant
re-
called
here so
*11
it. A
like
v.
is
Wasson, supra,
case somewhat
State
ferred
Meeks,
v.
Mo.
S.W.2d
State
Brandenberger,
supra,
204, 205,
Defendant that evidence he was at Eldora in 1940 is too remote in to be He time admissible. say was careful direct examination he inwas the service from 1942 served and contracted malaria South Pacific and clearly opened was never trouble. This history door for the State to cross-examine defendant as to his recently at least as as 1940. The cross-examination the materially condemns as too remote more remote time than the goes direct which back to 1942 as to history and covers defendant’s entire lifetime in the matter having in any trouble. single
Aside from what thus far said herein I think the answer defendant on cross-examination in 1940 he inwas Boys not, Eldora School for under the circum- *12 here, sufficiently prejudicial require stances to The reversal. majority concedes “The record as it stands does not indicate * * *any delinquency under Code section 232.3 as the reason purpose Undoubtedly may or boy commitment. be sent which, to the under if School circumstances under- stood, only reflect discredit but misfortune.” is no There suggestion jury clearly the record the did not understand the circumstances which was under defendant sent the train- ing and, presently point out, they school shall reflect no dis- only on him but credit misfortune. chapter 1950, 180, Code, (chapter 232, Codes, 1939
Under may 1954), juvenile boys court send to the'Eldora school merely dependent neglected, delinquent who are or not or proof having delinquency criminal. Thus at Eldora is no been or crime. jurors
We to be committed to the rule that pre- seem are plain sumed to matters no more than law know law
1003 224 Dodds, Eldora. Keller v. pertaining to who sent Freight Takin Bros. 942, 467; 277 Remer v. 935, N.W. Iowa Fagen Ele 297, 299; 297 N.W. Inc., 290, 296, 230 Iowa Lines, 56 582. See N.W.2d Pfiester, Iowa v. vator R. Murray, 33 L. 17, 22, N.W. A. Kessel v. also N.W. 1270, 1274, 1275,232 Evernham, 210 Iowa 1346; Kowalke (and it known jurors presumed are 670. Thus the here having know) been they defendant’s did in quite evident fact delinquent criminal. not he at Eldora is evidence was just expressed, Aside from the views in- as the fully jury explained why defendant to the dicates, was sent separated father mother five. to Eldora. His when he was disobeying my -just living “It the result was father — supposed My I was father in El- placed him when to. had me explanation undisputed. This oc- jury dora.” had no speculate surrounding as to the circumstances casion to defend- nothing commitment Eldora. There is to indicate ant’s them delinquent reasonably or criminal cal- or that is juror against prejudice average Indeed culated defendant. probable more pertaining seem the evidence to defend- would stay naturally in Eldora sympathy ant’s would arouse for him. true, as the significant,
It is thinks was the trial reaction to the about court’s first answer at Eldora having prejudicial seemed to be error. upon reflection, argument further after full However shows, (including, citation of court with authorities as the record Wasson, supra, 1125), con- good very prosecutor’s of the matter of the sideration faith reading likely examination, of defendant’s direct decided be declared. The court to this view no mistrial should adhered overruling mature reflection in mo- upon more later defendant’s grant trial part for new based its refusal tion mistrial. overruling
By the motion for new trial virtually the court prejudice. found the cross-examination was without trial *13 position in better than we court was are to observe the effect cross-examination of defendant jurors. the I think appear. Certainly abuse of its discretion does not no clear Hogan, is See State 115 455, 458, abuse shown. v. Iowa 88 N.W. 1004 537, Ean, 534, 538, State v. 90 Iowa 58
1074; 898; N.W. State v. Gadbois, 25, 32-34, 89 Iowa 56 N.W. indulges majority suspicion that had witness
Tbe “tbe prosecutor would not been not bothered history.” go teen-age equally proper to sus- into his It seems pect defendant, not his counsel on the witness that not have his service direct examination would bothered show the South Pacific as far back as armed forces any he had never been in trouble. if a witness that But testify examination, other defendant did so on direct than not con- submitted such cross-examination as we find here would stitute reversible error. majority State Wheeler, cites v. 100, 106, Iowa 374, 376, State v. Nugent, 237, 240, 134 Iowa 111 N.W.
927, 929, Asbury, State v. 606, 154 N.W. Ann. Cas. proposition 1918A for the error pre- prejudicial. sumed to-be any ques- None of these cases involves improper tion of cross-examination of defendant. says concerning Asbury,
is mistaken what supra. State v. majority quotes The statement Wheeler, from State v. supra, by, nothing is followed “And there is instant rec- ord, whole, taken as. which can be said to the presump- rebut arising.” tion quotes thus What the from State Nugent, supra, by, is followed “If the error a material involves point in the case, prejudice survey presumed, must be unless of the whole record contrary affirmatively appears.”
If there holding were sound basis for here there was error single respect urged by defendant’ and if presump- prejudice tion of think therefrom, arose clearly the record re- presumption. buts the However the applicable, rule here as stated in previously the decisions reviewed herein and recog- nized majority, is that “the trial court has a considerable * * * discretion passing on the propriety of cross-examination * * #» and we not reverse unless abuse of that discretion appears. Ragona, supra, 5 N.W.2d 907, 909, says there must be shown a clear abuse discretion. also, See previous addition to herein, citations though involving defendant, of a v. Propp, *14 90; Archibald, 185 N.W. 186. duty concern with of the The indicates much “the charged crime protect right court of a * * impartial trial an is en- fair and Of course accused should, can, if it see that a trial and court titled to such a, duty crim- But court’s in a gets it. this is not extent of upon appeal a conviction. There are two inal trial or from defendant, State, no less than the parties to such action. The duty protect trial and it is a court’s right has a fair justice corresponding as much as right that with evenhanded discharged duty I right think trial court of the accused. virtually eyes rights its here. shuts State. and im- right of and the State to fair the accused regardless of the
partial is of course clear nature trial why charged. perhaps special there are reasons crime But important driving protection seems drunken They numerous than all other criminal cases cases. are more between drunken driv- there is a direct connection combined and carnage highways. appalling on our ing and the Of would affirm. course Thompson Larson, JJ., join this dissent.
Bliss, George Opal Benz, Benz, surviving spouse H. and as L. estate, appellant, al., et of the v. Louise Paulson administratrix (Nellie al., appellees). appellees Benz et substituted
No. 570) (Reported in 70 N.W.2d