163 Iowa 123 | Iowa | 1913
Orchard, the scene of the alleged crime, is situated in Mitchell county, Iowa, about five miles from Osage, the county seat. At the time in question a banking business was being conducted at that village under the immediate charge of E. O. Clapper as cashier. The defendant, Glenn Gulliver, is a young man of twenty-two years of age, and for the larger portion of his life had been a resident of Mitchell county, having made his home at Orchard and later at Osage, where he attended high school, from which he graduated about the year 1906. So far as appears he had maintained a reputable character in the community where he was known. After leaving school he found employment as advance agent and later as business manager of a minor theatrical company or troupe traveling from Chicago, 111. During this period he frequently returned to Mitchell for periods which sometimes extended into weeks or months and on one or more occasions assisted some school or society in preparing and presenting a dramatic performance. It follows from these circumstances that he was familiarly, or at least casually, known to many of the people of that county. He is, moreover,
On Thursday, December 14, 1911, a person unknown to the cashier came into the bank introducing himself by the name of Gains and claiming to be a sales agent for a manufacturer of gasoline engines at Waterloo, Iowa. He made inquiries concerning the financial standing of certain farmers residing in the neighborhood and mentioned the names of persons to whom he hoped or expected to sell engines. He spent a large part of the afternoon in the bank, and, the weather being cold, Clapper invited him into the office back of the counter, where he sat most of the time carrying on a general conversation with the cashier and his wife, who was also present. On the afternoon of the following day he returned to the bank reporting alleged negotiations for the sale of engines and was again invited into the office, where he remained until the usual hour for closing — about 4:30 p. m. Leaving him sitting by the stove, Clapper turned to the money drawer and was engaged in gathering up. its contents preparatory to placing them in the safe, when Gains, without speaking or making any demand, assaulted him, striking him twice upon the back of the head. Not being disabled by the blows, Clapper turned upon his assailant, who immediately fled and disappeared from the village. So far as seen by the cashier,
The record presents some remarkable features. The trial was contested with great stubbornness on both sides and occupied the attention of the court and jury ten days. More than one hundred witnesses were examined at great length. The printed abstracts aggregate nearly one thousand one hundred pages, to which are added eight hundred and fifty pages of argument by counsel. The motion for new trial twice amended assigns thirty or more grounds thereof and is supported and resisted by an array of more than fifty exhibits. In this court ninety-one alleged errors are assigned and argued with much thoroughness. These things are here mentioned, not by the way of criticism, but to make olear the manifest impossibility of compressing within the allowable limits of an opinion anything like a full or complete statement of the testimony or of supplementing such statement by a complete review of the arguments of counsel. We shall therefore, when possible, avoid all reference to the testimony of individual witnesses and speak only of facts, inferences, and conclusions which in our judgment the jury could properly'have drawn from the evidence in its entirety and discuss only those legal propositions which appear to us controlling upon the disposition of the appeal.
I. Has the verdict of the jury sufficient support in the evidence 1
The alibi relied upon by the defendant differs from the ordinary case in this, that it involves the question of his actual location not merely upon the day of the crime but upon the previous day as well. The theory of the state’s case is that the man known as Gains, who assaulted Clapper in the-bank on Friday, December 15, 1912, was in the same place the day before, spending a large part of the time in the same bank, and that Gains and the defendant are one and the same person. It follows, of course, that even if defendant was in Orchard on Friday afternoon, or so near that he could have been present at the scene of the crime, his alibi may yet be sufficiently established upon proof that on Thursday afternoon when Gains was visiting, the bank defendant was himself so far distant from Orchard as to render his identity with Gains impossible, or at least sufficient to raise a reasonable doubt in the minds of the jury. The theory of the state is supported with varying degrees of positiveness by several witnesses who swear to seeing defendant in Orchard on both Thursday and Friday. Some of them say they'saw him in the bank on Thursday, and others say they saw him there still earlier in
It is fair to say that the effect of the testimony of some of these witnesses was to some extent weakened on cross-examination. None o£ them except Clapper and his wife claim to have had any conversation with the person whom they recognized as defendant, and several of them betray some degree of uncertainty in their conclusions or in the accuracy of their memories. The defendant concedes that he was in Orchard for a very brief interval on Friday, but returned to Osage about noon, staying there the entire remainder of the day. He insists, however, and in this he is supported by a large number of witnesses, that not only was he in Osage at the hour when the crime was committed, but that he was in the city of Chicago, I1L, during all the earlier part of the week until an early hour of Thursday morning, when he took a westward bound train on the Illinois Central Bailway, purchasing transportation to Charles City, Iowa, where he had a business errand. According to his story, he met one or more acquaintances on the train, took breakfast at Waterloo, Iowa, where he met other acquaintances, and thence passed on to Charles City, where he arrived Thursday noon. He says he remained in Charles City all that afternoon, meeting and talking with many different persons to whom he was well known and taking an early evening train arrived at the home of his mother in Osage about 8 o’clock. This story in most of its essential details is strongly corroborated by several different witnesses in Chicago, who say as of their own knowledge that defendant was in that city all of the week of December 14 and 15, 1911, until after midnight of Wednesday; by several more who saw him on the train or at Waterloo on Thursday morning; and by numerous others in Charles City who swear they saw him there on Thursday afternoon at such times that if they speak the truth he cannot be the man Gains who was in
As in the case of the state’s witnesses some of those testifying for the defendant are on cross-examination led into some qualification of their more positive statements. We have thus a vital question upon which there is an irreconcilable conflict in the evidence. Speaking for himself alone, the writer of this opinion does not hesitate to say that a reading of the testimony leaves him in such grave doubt upon the possibility of the defendant’s presence at Orchard on any day of that week prior to Friday — a doubt which necessarily extends to his identity with the person who assaulted the cashier on the following day — that if this court was authorized to retry fact questions in criminal eases he would be in conscience bound to vote for an acquittal. But the state’s case is not without evidence in its support. The veracity of the witnesses and the weight and value of their testimony were for the jury alone, and it is not within the province of the court to review such finding except so far as may be required to ascertain whether there is anything in the testimony which, if believed by the jury, affords reasonable ground for sustaining the verdict. In the case before us there is positive and unequivocal testimony that defendant was the very person who committed the assault, and other testimony that for at least two days he was in the neighborhood where it was possible for him to have been guilty of the offense with which he is charged, and, while the countervailing testimony is very strong, the court cannot say that' the jury exceeded its authority or violated its sworn duty in believing the former to be true and the latter false or mistaken. The verdict cannot be set aside for want of evidence to support it.
For instance, one Seifert is said to have been in the bank at Orchard on Thursday or Friday when “Gains” (or defendant) was there. Clapper the cashier was examined with reference to that incident. From the record of his testimony we make the following excerpt: “A. And when Mr. Seifert came in after a draft, Mr. Gains was standing by the second window; I think that is where he was standing when Mr. Seifert came, and Mr. Seifert spoke to him, and said, ‘How do you do?’ But of course I didn’t know that they knew him personally.” Mr. Salisbury objected as follows: “Now we want those things cut out. We object to that as immaterial and improper. By the Court: And also harmless. Mr. Salisbury: I hope so. Mr. Lovejoy for State: Absolutely. By the Court: Just omit these remarks about whether you did or did not know certain matters.”
Another complaint is made that a witness having testified for the state, and being asked upon cross-examination whether in his testimony at the preliminary hearing he had not made a certain statement quoted from the record of that hearing, and having admitted the same, was thereupon asked by counsel, “Why have you changed it?” To this the state objected as an assumption that the witness had changed his testimony, and the court said, “Well, that is hardly a fair question.” To this remark an exception is also urged. The suggestion of the court was not at all improper. The question as put to the witness contains an implied accusation or suggestion that the witness had in some material way changed the substance or meaning of the testimony given by him on the former occasion, when as a matter of fact the record shows no material divergence between the two statements. Such method of interrogation is not “quite fair,” and the court’s suggestion was not uncalled for. A witness should not be cowed or put upon the defensive by the aggressiveness of counsel until at least he has manifested such interest or involved himself in such apparent contradiction or inconsistency as to justly call for rebuke. In no event could this incident have worked prejudice to the defense. The record of the witness on both hearings was given
Even more manifest is the lack of merit in the exception to the court’s ruling excluding evidence of what was said by an unidentified stranger or tramp who appeared at the door of a witness living near Orchard on Monday morning after the assault on Friday. It is difficult to believe that this could have been offered with any confidence in its admissibility. It is too clearly incompetent to require discussion or citation of authority.
Within reasonable limitations each side must be allowed to conduct its case in its own way; the court being charged with the duty of preserving decorum and observance of the settled rules of procedure. It cannot undertake to pass upon the logical soundness of all argument addressed to the jury. Defects of argumentation and reasoning when apparent carry with them their own antidote, and, where the poison is more subtle, it may be safely left to opposing counsel to deal with. This liberty is, of course, not to be enlarged into unbridled license of defamation and abuse, and, with a single exception hereinafter mentioned, we find nothing in the argument of the state which seems to approach this extreme. The limits upon the time and space we can give to this matter forbid our doing more than to illustrate the nature of the criticism made by defendant’s counsel. In the course of their arguments the county attorney and his associate said of a witness that he “stands alone,” or is “uncorroborated,” or words to that effect, when it is contended for defendant that two or more or perhaps many witnesses testified to the same effect. This is said to be an abuse of privilege or misconduct to the prejudice of defendant. We cannot so hold. If counsel made misstatements of that nature knowingly, it was of course unprofessional; but the mere fact that one who undertakes, orally and within a few hours, to discuss the testimony of more than a hundred witnesses, states incorrectly the number of witnesses testifying to a given fact, is not per se evidence of bad faith, and, as the truth of the statement must be tested by the memory of twelve jurors and the challenge of opposing counsel, it appears, certain that no material prejudice could result therefrom to the defendant.
And this we must say, also, as to other exceptions taken to the state’s argument to the jury.
But whatever be the merit of this distinction, it is to be noted from the record that the defendant went to trial without raising any objection to the indictment, and under a recent statute this would seem to operate as a ■waiver of the defect even if a timely objection thereto might have been well taken. See chapter 227 of the Laws of the 33d General Assembly.
We are quite conscious that this opinion inadequately reflects the record in its entirety. If we have left certain features of the testimony unmentioned and certain points of argument undiscussed, it is not because we have failed to consider them, but because the mass of material laid before us is such that we are forced to omit specific notice of the matters and things which appeal to us as being of minor importance. In final analysis the appeal turns almost entirely upon the single question whether the testimony is sufficient to sustain the verdict of guilty. As we have already said, if the veracity of the state’s witnesses is conceded there can be no doubt of the defendant’s guilt, and, as the credence and weight to be given their testimony were for the jury alone, its finding cannot be disturbed.
The judgment of the district court is therefore Affirmed.