182 Iowa 1253 | Iowa | 1918
Northwest of, bnt not far from, Centerville was a ball park, and adjacent thereto a hall, at which dances, attended by Americans and Italians, frequently occurred. In the evening of June 1, 1916, Pearl Traxler, then operating an automobile livery at Cincinnati, James Richmond, an employee, Clarence and Silas Thomas, and John Stevens, reached this hall about 9 o’clock. The defendant, Charles Rove, Roy Ñoño, John Tolimelio, and Lena Hinkle, who are charged in the indictment with the murder of Traxler, Eva Ressler, and May Mosley, were then in attendance. The dance closed at about 11:30 o’clock, and these parties moved toward Rove’s automobile, beyond the gate, some going over and others through, as Traxler and those with him drove up, and requested Eva Ressler to open the gate, so that their automobile could pass through. She was unable to do so, and an altercation ensued, which terminated in the killing of Traxler. As Lena Hinkle left the hall, Traxler had asked her to go home with him, and when she refused, and walked on with,defendant, remarked that he supposed she preferred “the damned Dago;” and there was evidence that, as Traxler stood, or was moving toward defendant beyond the gate, the latter, on whose • shoulder rested Lena Hinkle’s hand, deliberately shot him. The evidence adduced by the State tended strongly so to prove; though Lena Hinkle swore that she saw Rove do the shooting, and she was somewhat corroborated.
Having selected counsel to his own liking, no fraud having been perpetrated therein, we know of no reason why lie should not, with the possible advantages of such choice, suffer the accompanying inconveniences or detriment. See cases in note in Ann. Ca's. 1913 D, supra; Darby v. State, 79 Ga. 63 (3 S. E. 663). We do not say that the rights of the accused may not be so flagrantly disregarded by counsel of his own choosing, and, as a consequence, justice so manifestly miscarry, as that a new trial should be ordered. See State v. Jones, 12 Mo. App. 93, where a new trial was awarded, and which seems an extreme 'case; but it even was
Nothing in the record in the case at bar indicates want of fidelity on the part of either of the attorneys acting in defendant’s behalf. They appear to have had a fair comprehension of the issues and of the rules of evidence, and, though somewhat prolix, they appear to have lodged proper objections, save in one or two instances, when these would ordinarily be raised. Objections are interposed when they might as well have been omitted, and some are omitted when it would seem they should have been interposed, in the most skillfully conducted trials. It is often a matter of do.ubt whether tenable objections are advantageous. Perfection in the methods adopted by attorneys cannot well be demanded ; and, even though the young lawyers did not present the defendant’s cause as well as some others might have done, this furnishes no ground for new trial, especially in view of the strong probability that he could not have been successfully defended by anyone he might have chosen. The court rightly denied a new trial on this ground.
“Here is the defendant, who does not speak our language, — at least not very well, — possibly' laboring under .some suspicion as to what is going on. We have not only got to try the case in the manner that the law says we shall, but try it right, and render justice; and therefore we must do it in a way to convince them that we have given them the very best attention that is imssible, in a legal and in a proper manner, — at least, we must not do it in a way that would give them any ground for suspicion, no matter how honest we are, or how hard we try to perform our duty. You will appreciate that your decision in this case is one of grave importance. It is as important as mine is. I have work to perform during all the case; but in the end, your work will be of more importance than the counsel at the trial table, and mine.”
This was tantamount to saying that defendant must not only be accorded a fair trial, but one which had all the appearances of such, even to commending itself to the defendant 'and those indicted with him. All of this might as well have been omitted. The court owed no apology to the jury for its order that the jury be kept together throughout the trial. But an explanation that, in causes of the importance of those in which murder is charged, such orders are usual, and in the interest of a fair trial, was not out of order. Undoubtedly, the jury so construed the remarks of his honor, and we are satisfied that they could not well have taken what he said concerning apparent fairness, in view of defendant’s situation and inability to express himself well in English, as in any manner indicative of his opinion as to his guilt or innocence. We are of opinion that no prejudice resulted from what was said.
“It occurs to me that some of this is immaterial, as he has testified here in truth that he did not know who fired the shot. He did not see the gun in anybody’s hands. Mr. Barasa: The only reason I brought this question up was this: he intimated at one time — sort of an intimation— that it was Frank, and I wanted to get the straight of it. 1 am satisfied.now. The Court: You could ask him direct about it, instead of asking him if he did not testify so before some other court. Mr. Barasa: The point was, there was a contradiction from this testimony and the otñer. The Court: The last three or four questions, there is no contradiction at all in his testimony at that time. If you want to lay the foundation for impeachment, that is proper; but it is immaterial what he testified to at the other time, except for the purpose of impeachment.”
The exception is to the use of the words “in truth,” with reference to the testimony. The expression was not fortunate, but could not have proved prejudicial; for in that respect, the testimony of Richmond was not contradicted,.
“If the court please, it now appearing to the State that the defendants Charles Rove and Roy Nofio, together with their attorney, C. F. Howell, is in the court room, and at their request, they are-permitted to take the stand and testify on the cause now on trial, without being called or subpoenaed by the State, or even at the request of the State so to do. Mr. Barasa: I object, unless they are shown to be brought as a court wit*1261 ness, then. .Mr. C. F. Howell: I want the record to show that the State requests them, and that they waive their privilege. Mr. Valentine: No, sir, the State don’t request them at all. Mr. O. F. Howell: They come voluntarily, surely. The Court: The county attorney, Mr. Valentine assisting him, have charge of this case, in so far as the prosecution is concerned; and if these two defendants, now in the court room, take the witness stand to testify, their testimony must be regarded as for one side or the other, and one side or the other will be responsible for it. And at this stage of the trial of the case, after the defendants have, rested, and the State is now in its rebuttal, the court is of the opinion that the testimony would have to be regarded as evidence on behalf of the State, and the State bound by it, as though they had called the witnesses themselves. They have the privilege of either taking the witness off of the stand, or assuming the responsibility of his testimony as one of their witnesses. Mr. Valentine: If we examine him, we examine him as our witness, and what — I don’t want the record to show that the defendant was requested by the State to testify. Mr. C. F. Howell: No, we would not want that record made. If the court please, Mr. Hays suggested to me that he wanted to use them, — ■ Mr. Hays: I don’t so understand it.”
The court then excused the jury; and, after some further discussion, adhered to the ruling as above recited, and the State withdrew the witness. This sort of performance is not to be commended. Undoubtedly, the State sought to obtain the advantage of testimony if favorable, without any risk if unfavorable, or the necessary consequence in event Eove and Nofio were later put on trial. The attorney representing them undoubtedly was without interest in the trial, save as what might happen would be likely to affect favorably the subsequent trials of his clients. He was entirely out of order in projecting himself and those he represented
“Now, after you had gotten your divorce from your .husband, Rigon, or whatever you call him, you continued to live with him as his wife for about a year after that, didn’t you?”
Over objection, she answered, “No, sir.” This inquiry touched her manner of life, and was permissible as bearing on her credibility as a witness. She had been refusing to answer whether her husband’s father had given her $300, so that she would get a divorce, and thereafter admitted that he did. There was no error. Thereafter, she was asked whether it was arranged between herself and husband that they would marry again after the divorce was procured, and whether they did not live together as husband and wife until the $300 was spent, and then the husband refused to marry her. In view of the circumstance that she admitted that she had received $300 from her husband’s father as the price of procuring a divorce from his son, we are not inclined to regard this questioning as not justified.
VIII. On cross-examination, Mrs. Moseley was asked when she was divorced from her first husband, to which an objection was overruled. The inquiry was admissible, as bearing on the credibility of the witness.
X. Timely objection was interposed to instructions on conspiracy, it being contended that there was no evidence-such as to warrant its submission to the jury. The evidence on this issue was ample to carry it to the jury. We have examined the record with great care, and discover no error which will justify interference with the judgment, or any difference with the conclusion of the jury. — Affirmed.