169 Iowa 571 | Iowa | 1915
It appears, without any conflict in the evidence, that between eight and nine o’clock in the forenoon of June 10, 1913, defendant went into the place of business of one C. P. Fetterer in Davenport. Defendant asked Fetterer if he would cash a cheek for defendant, and, as the witness states it:
“I replied to that, ‘Yes, sir. Yes, I will cash your check if you have money in the bank. ’ He said, ‘ Sure I have. ’ Then I said, ‘In this bank on this cheek?’ I had the check then; Mr. Cooper had given it to me. After he handed the check to me I asked him if he had money in the bank. I took the check and looked at it and looked at the other side, turning it over, and then I says, ‘Have you got any real cash for the cheek? Have you money in the bank?’ and he says,, ‘Yes.’ I pointed out the name of the bank on the check and asked him if he had money in this bank, and he said yes to that. Then I cashed the check.”
Witness testifies that he believed his statement, and on cross-examination says he had confidence in defendant. Later in the forenoon of the same day, the witness presented the check to the bank upon which it was drawn, and payment was refused. The check was dated June 11, 1913, but this witness testifies that he did not notice thé date and did not know it was dated the 11th. The witness then went to defendant’s
One 0 ’Neal, an attorney who had an office with defendant, told the witness that he would have the money down at the bank at nine o’clock the next morning. Between ten and eleven o’clock the next forenoon, witness went to the bank, and payment of the check was again refused.
Witness Tellcamp, an employe of Fetterer in his saloon, Was also present at the time the check was cashed and, while he did not hear all the conversation, he testifies that he did hear Fetterer inquire of defendant whether he had money in the bank named in the check, and heard defendant say that he had.
Witness Bruning, employed in the bank in question, testifies that defendant did not have an account at the bank on the 10th or 11th of June, 1913, and that he never had an account there at any time. He testifies that O’Neal came to the bank about four o’clock in the afternoon, after the bank had closed, and by the back door, and wanted to pay the check, and was informed that the check was not there. Bruning thinks this last named transaction was on the 11th of June, but O’Neal himself testifies that it-was on the 12th and that it was after the matter had been placed in the hands of the county attorney and an information filed against the defendant, or at least prepared.
Witness O’Neal, for the defendant, testified to the Visit of Fetterer to defendant’s office on June 10th, and that he called Fetterer’s attention to the fact that the check would be taken care of. He testifies that he went to Fetterer’s place of business between two and three o’clock on June 12th and wanted to take up the check, but was informed by Fetterer that he did not have the check; that it was in the county attorney’s office. O’Neal says that, being unable to make any arrangement in the way of a settlement, he left, and that after that, on the 12th of June, he went to the bank; that when
The defendant himself testified as a witness and said that he cashed the check at Fetterer’s place on June 10th; that the amount of the check was $13.00; identified Exhibit “One” which had been offered in evidence as the check; that the name on the cheek was his name and his signature; says he cashed the check with the intention that an ordinary man has that cashes a check, to pay it off; that he did not have any intention to defraud Mr. Fetterer out of that amount of money, or any other amount; that such an accusation is perfectly insane; and that such a thought as that would be insane.
An attempt was made on cross-examination of Fetterer to get him to say that at the time the check was cashed defendant asked him if he would take a chance on him, or on cashing the check, but the witness denied that such language was used, and there is no other evidence in the ease on that subject.
We have stated the substance of all the testimony. The verdict of the jury has abundant support in the testimony. In fact, in our opinion, there can be no question as to the defendant’s guilt. There is no -denial of the testimony of the two witnesses who heard the statements made at the time the check
We are of opinion that the objections now urged, if they have any merit, are such as that they should have- been made before the swearing of the jury, and they were waived by not making a timely objection.
Counsel for appellant concede in argument that it would have been better practice for defendant to have demurred to the indictment or to have moved to set it aside.
Furthermore, counsel for appellant seem to concede in argument that State v. McConkey, 49 Iowa 499, is against their contention. It was there said:
“The indictment charges that, by means of the false token and pretense, the defendant obtained from Hurst the property described. This allegation embraces the idea that Hurst relied upon the representations made, etc.”
Other objections are now raised, with cases cited in support, which were not raised below. Such points require no further attention.
“Whether said representations were false and untrue, and whether defendant knew that they were false and untrue, you must determine from all the evidence and circumstances in evidence in connection with said cheek and with what was said and done by both defendant and Fetterer, and which may throw any light on these questions; but you must further find that such representations were fraudulently made, that is, that they were made with a deliberately planned purpose and intent to deceive and to induce Fetterer to deliver to defendant the ownership and possession of said money. Intent and purpose are seldom, if ever, susceptible of proof by*579 direct.or positive evidence, bnt are usually a matter of inference from facts and circumstances in evidence in the case,' etc.”
This is not in conflict with Instruction 6, which simply states the different propositions which the state must prove. No other instructions were asked by defendant. The mere fact, if it be a fact, that defendant intended to repay Fetterer at some future time in some other way, or to repay it if prosecution was commenced, would not of itself relieve defendant from guilt of the crime charged.
law : instructions consiáwed as a “It is sufficient if it be proven to you beyond a reasonable doubt that defendant used language to said Fetterer by which he intended Fetterer to understand that he did in fact have funds in said bank subject to his cheek, that the check was drawn in good faith, and would be paid when presented m due course of business, and that, from the language so used, Fetterer had a' right to understand such to be the defendant’s meaning. If you do not so find, your verdict should be for the defendant.”
In argument, appellant has omitted the last sentence just quoted. This part of the instruction is objected to on the ground, as appellant states it:
*580 ‘ ‘ The court will notice that the trial judge did not preface the eighth instruction, or the objected part thereof, with the , words, ‘In connection with, or in addition to, what I have previously said and hereafter shall say, it is sufficient, ’ etc.; that it omits all question of specific intent, and all question of whether or not Fetterer acted thereon, etc.”
The first part of that instruction refers to the second of the propositions which the court had stated was necessary for the State to prove, and is in regard to whether the defendant at the time he presented the check represented that he had money in said bank. It is clear that the portion objected to was in connection with what had been said before.
It has been repeatedly held that it is improper to select one instruction, or a sentence therein, and consider it by itself, but that the instructions must be considered together and as a whole.
Again, it is said that defendant was entitled to have his plea of not guilty stated properly to the jury as a material part of the formation of the issues for trial. This was clearly done in the first instruction, which reads in part:
“To this charge the defendant has interposed a plea of not guilty; it is, therefore, incumbent on the State to prove every fact essential to establish guilt in order to warrant conviction, and to do this the proof must be made fully, it must conform substantially to the allegations of the indictment and must establish guilt beyond any reasonable doubt.”
Instruction 14 reads:
8. Criminal law : trial: verdict: iorm of: sufficiency. “If you find the defendant guilty, the form of your verdict should be: ‘We, the Jury, find the defendant, Charles T. Cooper, guilty as charged.’ If you do not find the defendant guilty, -the form of your verdict should be: ‘We, the Jury, find the defendant, Charles T. Cooper, not guilty. ’ When you have agreed upon your verdict, put it in writing upon a separate piece of papbr an'd have it signed, etc.”
“The indictment in this case charges the defendant with-the crime of cheating by false pretenses, as I shall hereafter more fully explain. To this charge the defendant has interposed a plea of not guilty.”
The instruction in regard to the form of the verdict clearly refers to what is meant in Instruction 1. The instructions presented no charge against the defendant. The jury could not have been misled, and we ourselves are able to comprehend it and determine from the verdict the intent of the jury. The trial court seems also to have understood what the jury meant. Indeed, the verdict, in form, is more specific than the statute requires. Sec. 5405 provides that the jury must render a general verdict of guilty or not guilty, which imports a conviction or acquittal' on every material allegation in the indictment, etc.
Counsel rely upon Secs. 5334 and 5335, and Secs. 5409 and 5410. The first two have reference to pleas by the defendant. See. 5409 provides for putting an improper verdict in form so that the intent of the jury may be understood. See. 5410'is on the same subject, and further provides that no judgment of conviction can be given unless the jury expressly finds against the defendant upon the issue, or judgment is given against him upon a special verdict.
Other objections are urged, but we do not consider -them of sufficient importance to further notice them.
There was no claim that defendant was insane when the crime was committed or when he was tried. Defendant was himself a lawyer. He cross-examined the prosecuting witness and other witnesses and examined some of his own, made objections to evidence, and testified briefly as a witness. No defense of insanity was interposed. This, of course, could, have been done under the plea of not guilty, but there was no claim of that kind until time for sentence. No evidence was introduced on the subject, no medical witnesses, no instructions asked or given on this subject. During the trial defendant did, in his comments, say that a person who would do as it was claimed he had done would be insane, etc. Counsel now say, if they are given another trial, they will plead insanity.
It is claimed defendant was and had been a drinking man. When sentence was about to be pronounced, he addressed the court at some length and became wrought up considerably. It was at this point, that the request was made for a jury. As stated, there was no competent evidence on the question as to his alleged insanity. The trial court saw him at the time and during the several days consumed in the trial and evidently had no reasonable doubt as to the sanity of the defendant. The court may have believed that it was
6. It is contended by appellant that there was misconduct on the part of the prosecuting attorney in his closing address to the jury, and that for this there should be a reversal. The entire closing argument was taken by the reporter and is set out in full in the abstract. This matter is not set out in the motion for new trial, or even referred to therein.
One ground of the motion for new trial is, that the verdict is the result of passion and prejudice, and this comes nearer than any other to reaching the matter now being considered. There was no objection or exception to that part of the argu
“The defendant objects and excepts to each and every word of said speech, and to the whole speech.”
This is not a sufficient objection. We shall set out the parts objected to, and the objection. The county attorney said:
“Oh! There is much in this ease, gentlemen, that they wanted to return the money. Why, is that a defense? Why you remember Commodore Fetterer, and he is rightly named the Commodore because he has exhibited some backbone in this ease.”
The objection was that Fetterer was not a Commodore, and that it is an expression used here like official positions, for the purpose of impressing the jury. The prosecutor continued :
“And when did he want to return the money? Commodore Fetterer — I don’t care what you call him — Fetterer said that they never offered him any real money until after he signed the information. That is what he has told you, and there is no contradiction about that either.”
The objection to this was, that it was a misstatement of the evidence as testified to before the jury. There was no material misstatement of the evidence, and it was a question for the jury what the evidence was.
No other objection was made to any part of the argument. It may be that a part of the argument now alleged to have been improper was so, unless it was in answer to, or
“This ease, as I look at it, gentlemen, is an important case. It involves various propositions. I could say the amount is not large. No, measured by financial measure, the case is not so important, but it is greatly important on account of the questions involved in it. It involves for one thing the question whether this floor in this courtroom is level or not.
‘ ‘ It involves the question whether people with professional degrees or education shall be tried by the same rules of law and be meted out the same kind of justice as some poor boy who never had a chance anywhere — never had a chance in life. How many of these kind of cases do we see in court? Some poor boy has no schooling, perhaps an orphan, loses his mother and gets into bad company, and the first thing you know he goes and commits a crime, possibly like this; and you know, my friends, what they do with him.
“Now, I ask that this defendant, regardless of his intelligence, education or profession, be tried by the same rules of law, and that you give him justice, no more no less, but get exact justice in his case.
“It involves the proposition whether attorneys can be prosecuted or not. It involves the proposition whether when you do or whether you or your family go to attorneys with a property matter, whether you can trust them. It involves the honor and integrity of the Scott County Bar. It involves the proposition whether when men are educated at the people’s expense and receive their license to practice an honorable profession at the people’s expense, whether then in return they can turn upon the community and prey upon it.
‘ ‘ It involves the proposition of whether saloonkeepers shall be protected from this kind of petty holdups. Aye! in this case they met a man who had a little backbone and he complained. But few saloonkeepers would complain under the circumstances. I think you, gentlemen, can infer as a matter of common knowledge how they run up against the wrong*586 man. This is why this case is here. I say, gentlemen, for some reasons, different ones, this is an important case, regardless of the amount- involved. “We have had a good deal of agitation here, gentlemen, in saloon circles. We have a right to take into consideration what we know here. Use a little common sense. We don’t have to forget what we know. We know this. We know that saloonkeepers in this community, under the mulct law and prohibitory law, live in glass houses, and they are afraid at any time that some little irregularity, without knowing it, they will violate the law. They live a life of fear, and you can get them on any tack. As my old friend, William 0. Schmidt says, ‘Peace to his ashes.’ They never intended when they passed the law in the legislature when I was there, they never intended that a man should live in safety under the mulct law. It is the easiest thing in the world to get them. And we can draw any fair reasonable inference in this case. Cooper went in there and'knew the man as a saloon keeper, and we have a right to draw the fairest in the world, that he figured that Fetterer would not make a hollow about thirteen dollars. But if it had been a large amount, the amount of money might have outweighed his fears, and then he would have made a hollow. And so he didn’t make it a large amount; he made it a small amount, thirteen dollars. Why, the fact that it is a small amount shows that he intended to defraud, shows how cunningly the plan was laid. He didn’t think Fetterer would say anything, and the amount being small. But he reckoned with the wrong man. There is a man without fears in his system; a man that will come to the front and keep the laws up in this community. He met the wrong man, that is what he did, when he ran up against Fetterer.”
It is true it does not appear clearly that this argument was in answer to defendant’s argument, nor does it appear that it was not so. The trial court heard all the arguments and the entire trial, and in overruling the motion for new
If we were to reverse for this, it would be for the purpose only of giving defendant another chance to go free, and this, too, when the evidence shows clearly, and without any substantial dispute, that he is guilty. Such is not the purpose of appeals to this court.
While the argument for defendant to the jury is not shown, the record does show that in cross-examination of Fetterer, defendant was abusive and referred in his questions and comments to Fetterer’s business as the cause of defendant’s downfall. The county attorney in other portions of his argument referred to these matters, saying that defendant tried “to browbeat, insult and taunt Fetterer,” and:
“All the things that were hurled at him with the intention of stirring him (Fetterer) up, he sat there' just as calm as a soldier and answered the questions. He didn’t come here vindictive, with an enmity toward Mr. Cooper. He told you that at the time the check was passed he' had no enmity against him. He told you he had actually confidence in him. ’ ’
And again:
“He (Petersen, counsel for defendant), tells you here that he was going to drag out the nigger from behind the woodpile and going to make him crawl and creep, and he*588 used that possibly a dozen times, holding up his hands, ‘Now, wateh, and don’t forget the nigger behind the woodpile.’ ”
Again the county attorney said:
“They insinuate and charge' that there is something wrong somewhere. Well, we are not allowed to guess anything in the case that is not here. ’ ’
These matters are referred to as tending to show that counsel for defendant may have made some remarks not entirely justified by the record and which the prosecutor in his remarks was answering. We are justified in this inference from the record and arguments in this court. We shall refer to a part' only of a number of statements entirely outside the record. Counsel have filed a suggestion of the diminution of the record and a motion in this court to have certified the proceedings and evidence in another proceeding, had since the trial of the instant case, and which has no connection with it. The record and evidence in that case have been certified. Counsel for appellant say in argument that at the time of the transaction in question:
“Defendant was in good standing so far as charges ever having been preferred against him are concerned. Defendant was a widower, having been deserted by his wife. He was a bad cripple, being lame in one of his legs and feet and was and had been an invalid for several years, suffering from various diseases, and had only recently been obliged to undergo an operation for appendicitis — and in addition thereto was a victim of excessive use of whisky and tobacco, to such an extent as to be a complete nervous, mental and physical wreck, although at no great distant date was a man of extraordinary power of mind and of strong influence and possessed of considerable wealth, and was for nearly two decades past looked upon by the people of Scott County, and a good part of the State, as one of its shrewdest trial lawyers and ablest politicians, was both loved and feared and was hated by his*589 enemies with a persistent hatred because of his successful rivalries. His marital ventures were two, each wife having deserted him, and his melancholy at times knew no bounds, and remorse and melancholy, feeding on the mind, ate away the man and he became, and was, insane. For a year or more immediately prior to this unhappy incident, he had engaged in various conduct which laid him open to criticism, much of which except in the mind of those who are able to know the man and his true condition, would perhaps justly lay him open to the criticism which his enemies and those indifferent to the name of friend or enemy almost constantly heaped upon him. He came of one of the oldest and best families of the pioneers of Scott County and was highly educated, at his own expense, and not at the expense of the county, as was charged by Mr. Vollmer — an Irishman by blood, and for years was true to the Milk-white-Hind] but the passion for drink, encouraged by our system of politics, drew its slimy coils about him and bore him away from family, from church, from wife, from himself. ’ ’ s.
There is more of the same kind. There is no evidence to support these statements. To support some of them, reference is made to the address of defendant when speaking to the court and not under oath. So that we have the assertion of counsel here based upon the assertion of the defendant. Other assertions are without any basis. The purpose is apparent. The assumption seems to be that this court does, or ought to, decide cases without any regard to the facts or law, and upon assertions of counsel, or through sympathy for a defendant. Counsel insist that the State must strictly comply with the rules, and yet seem to think that the defendant may disregard all rules. It sometimes occurs that there is no meritorious defense and that resort must be had to such means as the only hope of escape.
The motions for leave and to vacate the judgment are overruled. The judgment appealed from is — Modified and Affirmed.