*1 the finding was evidence to sustain There charged, appellant guilty except did And the property $20. value of the not exceed the sum of only punishment provided for under the statute under which appellant against, was informed “where the value does not $20,” exceeding impris- exceed is that he be fined not $300 county jail exceeding year. oned one indicated, judgment For the reasons is reversed, below court, cause remanded district with instructions appellant re-sentence provisions consistent sec- tion 13008, opinion. as set in this out remanded,
Reversed and with instructions. J., C. Donegan, Anderson, Kinteinger, Richards, JJ., concur. Hamilton, Appellee, Appellant. Iowa, Johnson,
State of v. Gale
No. 42970. *2 January 14, 1936. Supplemental Opinion Rehearing on Petition for and Rehearing May Denied, 8, 1936.
Doran & F. Finley, Doran and S. for appellant. O’Connor, Attorney
Edward L. General, Maley, Walter F. Attorney General, First Assistant Dailey, County John A. Attorney, appellee. for May 27, 1934, J. On about 5:20 in morning,
Parsons, Sauer, captain city F. W. a of Burlington, Iowa, police force, gunshot wound, from received a the effects of which he died, by herein, shown the evidence and as conceded attorney open presence defendant’s court and case, which warranted the jury defendant in in finding the herein : facts set forth wife, Johnson, defendant and Dessie in the lived
city Logan, of Des Moines at 1716 and had a V-8 Ford black county coupe carrying plates Polk license 35980, 77— Johnson; May 25,1934, midnight, name Dessie that on at near Moon, the defendant was at Blue a roadhouse about two Galesburg, Illinois, highway miles out of on No. dancing large drinking;
there was a crowd there in, defendant having and two others came defendant a shotgun, and at least one of the short barrel others sawed-off or revolver; couple that a of shots steel were fired a blue stick-up progress. it was learned building, taking money crowd, the men went around from the One of doorway shotgun holding and the defendant stood off revolvers and a like the ones used the crowd. Two house stick-up occupied were found time Moines, Iowa, wife in Des at thе of the arrest of the in company defendant. was seen with another The defendant May (not Johnson) man and a woman Mrs. reddish-haired Club, p. about 4 o’clock m. at Arcadia a road- Gladstone, Illinois, Burlington; house near about miles east of left; he was time and while there it was noticed short very Sunday morning, that Johnson was nervous. That on May 27, 1934, 5 :20 a. Faith m., Hansen, young woman *3 alley of Burlington, building voices in the near the where heard roomed, she thought being opened a window was closed and and Economy Store, at the police. and she called the As a result of call, Capt. Economy Sauer and other officers came to the building, Store shotgun and Sauer received a wound from a proximity Economy close the Store; to that defendant and another man came from the shooting, the defendant carrying they shotgun, carrying revolver, a and the other a and went to parked, where a V-8 car going Ford the defendant to the side of the the shotgun Ford V-8 and laid his on floor of car, pistol and the other with the went man to ' ‘ driver’s car; side of the saying other, one to Oh hell bend them up,” one to whom this was said went back and tried to plate county bend the license down so that the number could not be seen. On the same about 7 o’clock Ford V-8 coupe was seen about miles southwest of New Lon- don, a town on the Burlington Moines, road from to Des about car, miles west Burlington. There were two men which was traveling high speed at a rate of over a rather crooked road, dirt and one of the men in car say, was heard to “We ’’ must angle hearing northwest. seeing witness this car and these words standing thirty road, feet back of the and had a side view them; he did plates not notice the license on the car. This was on the road to Des Moines from Burlington, which is about 200 miles from Des Moines.
The further jury facts that be could found are that Burlington came from with a warrant 30, 1934, officers May on police They defendant, cooperating. Des Moines to arrest defendant, there acknowledged home of found went to subsequently which was taken to eoupé Ford V-8 аs like the car witnesses testified and there identified town, and that the license seeing plates out of being driven plate had been on that the rear bent down said car showed county number; the evidence corner so as to obscure one plate. addition, In showing on said bending such still pair gloves of rubber premises on defendant was found blue steel revolvers and a two sawed-off .38 caliber. in the case that the defendant
There was further evidence safe-keeping, Madison for prisoner Fort takеn as a who convict, while there was heard conversation yourself got “You in a hell a fix. What did said to him: you “It replied: him down want to smoke for?” and defendant going it him, and I damn sure wasn’t was either me or am me; I pinch.” can’t stand another of an alibi. The The defense introduced was nature jury it could the alibi witnesses or could believe believe in Illinois four or witnesses saw defendant five who May, 1934, 25th 26th or the various witnesses if Burlington; could, it believed saw the defendant it guilty; but established, have found the defendant alibi considering evidencе, all found After did not so find. Evidently degree. guilty of murder in the second who saw the four five witnesses must have believed *4 arrested; him Illinois, and saw after he defendant in who him in after who saw and believed witnesses facts arrest, found that the other him, all identified and circumstances warranted his conviction. and, verdict, was sufficient evidence sustain
So there that, prejudicial is jury being judges of unless there case, we of the error in the record calls for reversal which should not reverse. instructions giving in
It court erred is claimed charge. in thе jury manslaughter going not below offense is that an included In this there was no error. The rule facts, jury of two the concurrence must be submitted to the on offense offense is an included First, wit: when such included 12 indictment; and, charged second, when the the one
in
justifying
finding
evidence
record contains
charge
guilty of such included
rather
than of some
accused
Kyne,
616,
v.
higher
420;
86 Iowa
53 N.
offense. State
W.
610;
Iowa
N.
Hutchinson,
566,
Trusty,
95
64 W.
State
State v.
v.
498,
677;
Egbert,
443,
92 N. W.
State v.
125
118 Iowa
Iowa
191;
Barkley,
484,
506;
129
101 N. W.
State v.
Iowa
105 N. W.
Ockij,
237,
486;
Harrison,
v.
145 N. W.
State
State
Iowa
v.
334,
1,
W. 452;
Perkins,
167 Iowa
149 N.
v.
Iowa
Stаte
146;
Buck,
1028,
17;
153 N.
v.
205 Iowa
W.
State
N. W.
1428,
Wheelock,
v.
216 Iowa
In Walker, State v. page 498, Iowa W. 110 N. 925, 929, the court said:
“The in the case clearly record that, shows if the guilty any crime, is guilty at least of the crime of manslaughter. repeatedly We that, have held cases, such *5 covering degree a lower to omit instructions it error is not indictment.” included crime Sue, 179 W. holds Quan Iowa N. degree for murder first has no on trial
that an acсused jury court submit included. right to demand any manslaughter, when the record bare of offense manslaughter. right to sub- demand the tending prove right offenses not embrace the to de- mission of included does in whimsical or be turned loose license mand that pleases, irrespective evidence; it latitude to do though the court submits murder the second true degree. fully rule of all these cases sustains the
So an examination through that, Besides there is scattered the Iowa as laid down. any reports prior cases or mоre of these cited from a dozen only Manslaughter being which this rule. can be deduced ordinarily is being malice, without killing mere of a human may may possibility that it have been absent given, as there may exist from inclusion prejudice to the defendant and no of it within the instruction. complains Of the admission of testi
The defendant adjacent Blue Moon mony place to what took at the Gales- very place might took at Blue Moon burg, Illinois. What actions appearance well for the account just partiсipated holdup Arcadia, at because day before, Moon the would account for defend at Blue only twenty twenty-five public place in a or ant’s nervousness away nothing hours later. There is in the ob miles several jection of the defendant that either Blue Moon incident point remote in of time to be the Arcadia incident too Galesburg is from Bur Taking distance admissible. Des to, and the distance from Moines to Bur lington, testified of, cognizance we to take lington, which distances have a Moon еven on the 25th and if the defendant was at Blue evening Arcadia, of the 26th at the and the appeared on the the time the next committed, this not connected we would have to to hold assume reasonably possible, probable that it de would be consequences of the Blue fendant would flee for fear of the Moines, in Des then be incident, Moon come to his home *6 nothing he was. There was the Arcadia at time back at preposterous assumption. in to show such So the evidence many deсisions, in as stated of our true, while it is and'in p. 588, C. that evidence of other crimes committed J. section by prove identity, accused is relevant to his but cor- it more say that, rect to where commission a crime is proved, of identify person evidence to accused as the who it is committed solely proves, to be or prove, excluded because tends to guilty independent of another and crime. upon So the question identity alone, well as upon showing of with him at Blue in corresponding had Moon description shotgun he with him Burlington, had at BB cartridge and the caliber thereof that was found car, companions his and that at least one of his had a blue steel revolver the same and same one appearance of make found defendant’s house Des Moines and the one carried companion at Burlington, his there was no error submit- ting such evidence. Hickman,
This court 195 Iowa W. 193 N. practically question deputy had to consider. There the sheriff An had been shot. hour or two before shooting crap game railway at the Y near the depot in Shenan- doah, in of which a number participated. game men While the going on, came, the defendants at re- and, point of volvers, who forced the crowd men were participating in game to line up rail, their heels to the and took from persons money. of different ones considerable sums of A short robbery time after the present some of those who Avere informed city occurrence, marshal of the and about half an hour thereafter decеased, deputy Patton, sheriff, in- was also transaction, requested formed go informant identify with him to perpetrated holdup. the men Avhohad telephoned Bingham Patton to have men there arrest parties and them hold until he should come. Patton and íavo Bingham three others went to on train, and, ap- as it proached the depot Bingham, defendants running Avereseen ahead of the piles train toward some tie a short distance from the depot. time passed About the train piles, the tie be- fore the stopped, city train Patton, marshal said to “Here they are Bert,” and Patton across from the east side cam.e the train jumped station, on off the southeast side of the number shots came from the immediately a had hid themselves. There was evidence tend- where defendants shots; five admitted fired one ing to show defendants two and the other shots. On this state them fired three shots page Iowa, page on court, of facts the says: W.,N. erred in appellant per- that the court thought
“It afternoon Shenan- mitting transаction separate distinct from doah, was a transaction because it *7 by appellant charge is, It as contended the in the indictment. cited, general the rule that the supported by authorities charged, the crime state is not its effort to establish permitted, the to substantive offense. But introduce evidence another point closely related rule is the acts all so that, where are other, each intimately so place, time and associated they transaction, that the whole transaction form a continuous may shown, immediately preceded and what immedi- be —what ately of, purpose of complained act the show- followed the —for Every party charged. ing quo the scienter or ammo of the every attending fact, circumstance, surrounding parties, the separation, their the action, meeting from the time of the to understanding relationship, proper of their to a material establishing probative and has force in their conduct towards says: “Conceding holdup in the eаch other.” Then directly closely separate offense, afternoon it was a The killing, related to the time thereafter. afternoon short material, throwing light upon purpose, transaction was shooting. motives, in the later and intention the defendants They felony time were conscious of committed a a short escape, prevent before. They trying to and to arrest. were Their were to conduct snch as show circumstances they were expecting arrest.”
The then the fact this evi- opinion calls attention says: think, too, “We dence was not denied. It further identity of question the de- was admissible present fendants. the transaction after- Witnesses defendants; hats, noon two identified their their identified the weapons, They were the same clothing. and-their identified witnesses, shortly Bingham, before the train arrived at persons they afternoon, same had at and even be- seen holdup.” Then the court calls fore attention to the fact sheriff, peace officer, deputy had to make an a warrant аt the time was attempting arrest without shot defendants, apprehend public where a offense had fact committed, ground been had reasonable to believe that be arrested person had committed it. So under this authority no question admissibility there can be about the complained of. circumstances under which can person given was seen be evidence to establish identity. were the means What of observation of person only identified? could be claimed that this was not admis- sible it was the because commission another crime for which be Unfortunately the defendant could indicted. for the de- fendant, seeing choir, instead of the witnesses him in a church committing they saw crime; him agree on that. And why there is reason no the circumstances under which he was shown, seen though cannot even it shows another crime in cases this character.
Regina Moody Briggs, case, & R. an old English that, where has holds one committed crime and is on trial for crime, another becomes material to show that the de- fendant was of where crime for which he is *8 committed, on trial was presence witness as to his or at near may go all into the circumstances of meeting his seeing defendant, even if it involves the commission of an- other crime. Leroy, v. 405, 112 61 Wash. P. 635, 638, lays down the
rule:
“Testimony otherwise relevant does not become incom- petent may incidentally because tend to show that the accused has committed another crime.”
To
State,
the same effect is Reed v.
166 570, 579, 458, 459; 179 S. W. Commonwealth, Morse v. Ky. 294, 714; People S. W. Thau, 219 N. Y. N. E. 3 A. L. 1537; Balch, R. State v. Mо. 37 S. W. 808; Underhill on (3d Ed.) Evidence section 154.
So there was no error of Blue the admission Moon incident. Illinois, is Galesburg, shows about
The that Everybody Illinois Burlington. of knows miles out Burlington. know east of So courts Mississippi across the it. The courts judicial to take notice of that, and have notice distances may judicial of this state do take and of one from state the direction between cities and something 200 miles south other, Burlington is over and that Galesburg east miles from Moines, making of Des thus over as theory offering Des Moines. The of thе state left to the Blue Moon Arcadia incidents is that defendant Des Moines to Iowa with carrying him, bringing with back well him, killed, which Sauer was Capt. with hunting It not the one or more blue steel revolvers. was season; shotgun, especially need for was no for a variety was at the Blue Moon about carried He defendant. of midnight May 25th, evening of and at the Arcadia vicinity Burlington 26th; and he was days all By “vicinity” close, that time. mean for these we time, was Galesburg, point was automobiles one who at compared trudging within two with one Burlington, miles of along days possible foot in the was before automobiles. on an theory of the he went unlawful state out expedition modern armed as he was. He was one of these ban dits, picking pick theory, up everything up. he could stay did Burlington, not but came around in the home, involves returning midnight to Des Moines after evening 25th then going back the Arcadia 26th, and then into 5:20 on the 27th. assumption Such an The evidence would absurd. doing; admissible to show what the defendant had no legitimate gun there; mission he had him. Men go armed, who armed with such as defendant was deadly weapons, legitimate not showing any purpose, should be permitted doings to be shown immune from their for purpose persons arms, their identification of *9 lingering crime, about legitimate the scene of with no shown purpose. Of So rights. course men a have charged with does rights. State in have its crimes suppress efforts has identify having been seen where he was, crime, position and as to commit been armed committing weapons with the used incidentally And, appears
crime. if it the identification is made of the defendant under such circumstances as to show crime, position e., neighbor- was in a to commit the i. he hood, part that as a identification was armed with weapon such defendant had when he raided the Blue testimony Moon, part evidence, such as a admissible weapon, as to the man who had the and it is no reason testimony deprived State should be of this because the defend- ant was in parties the commission of another crime which the gone saw him commit. All this into could bе and would gone into if' attorneys, on cross-examination the defendant’s engaged evidence would show that was then honest an legitimate purpose. give business or That would a reason for neighborhood, him being being reason for armed deadly such instruments. It is time that criminals were let to cannot shield themselves from hav- know ing their actions shown under such circumstances as the de- necessary if Moon, fendant acted at the Blue becomes show parties engaged that the defendant on trial is one of the сowardly, Capt. such as that of vicious murder Sauer Sunday May morning. on that
The trial court ruled on matter during trial, testimony instruction told the that “all of the wit- nesses Daughterty (who Gall and were witnesses to the Blue Moon incident) your consideration, except withdrawn from that part description ap- of such evidence relative to the pearance persons objects testified to such wit- nesses and the place So, time and testified about.” if any were error in testimony, the admission of this the instruc- up. say tion the court But cleared we there was no originally error in this case.
We think the trial court went further in this than he should. We see reason, no cited, why under the authorities of what there, took place e., i. the circumstances under which the Blue Moon holdup made, defendant was iden- tified as being it, go jury; perhaps was not entitled to not in its detail, part but as a of the circumstances under which the witnesses saAv the defendant.
Neither Avas there error in the dying admission of the state- Capt. ment of Saiter. The shows he had a sense *10 dissolution, and it was not error to impending hence introduce his statement. conduct of the de admission he was of the crime
fendant at the time first accused was not objectionable. fact, is, In rule conduct of the defendant 549, of the when he is accused crime admissible. C. J. says: 1057, section
“At least in so far as tend to connect him with the merely self-serving, are not general conduct and crime, demeanor language, of the accused after the oral written, his toward the crime, attitude relations and his presence actions in the engaged endeavoring of those to detect always the criminal relevant, part gestae are whether of the res or not.” support This text finds in State v. Iowa Beckner, 197 643; Pratt, 198 N. W. 1252, State v. Iowa 267. great by
A deal comment made the defendant’s attorney argument county on the unfair attorney. We carefully, have very and, way looked the record over from the by the trial record, was conducted as disclosed the conduct county attorney of the no more be criticized than was attorneys conduct of the defendant’s provoca constant tion, and in passed “side bar” remarks across the How table. ever, there is no record whether or not com whatever was plained arguments of was not said answer to of defendant’s attorneys. this; The trial court heard all it was under control; court’s questions these that were were raised overruled by the court, properly. Sale, trial and we think In State v. 1, page 5, 680, 681, Iowa 92 N. W. N. W. says: court compelled portions
“We are argu- admit ment, quoted by record, intemperate counsel from the seem and unnecessarily character; violent their but we have not argument the counsel record for defendant addressing jury, knowing and have no means of to what extent argument prosecuting attorney justified of presentation excused of the defendant’s case.” lays Cameron, 158 N. W. down Iowa the rule nothing that it will con- presumed, appearing to the public prosecutor
trary, argument legitimate was a response argument for the defendant. wholly herein
The defense the nature of an alibi. *11 course, Moines, if the he Evidently, of defendant was Des Capt. Burlington was not in at the time was But Sauer shot. May that he was in the of the 27th is shown there; the saw him several witnesses who that he the Arcadia, Burlington, at a miles three few out of at least to; is witnesses testified and that he was at the Blue Moon testimony equally All this goes well verified. to show he was vicinity Burlington during So, necessarily, that time. there was the a conflict in evidence between the the State and had jury defendant. The the the wit believe State’s nesses, evidently and it did believe them. An alibi is an affirma tive defense; proof upon setting the is person burden the up an prove alibi to it a preponderance of evidence. Of course, if the whole record raises reasonable doubt guilt, may he not guilty. be found case instructions in this regard go many not alibi did far as such instructions rightfully go. might times very The court well have told jury, alibi, addition to what an that evi said dence of caution; an alibi with should scanned that it is defense easily Blunt, 468, manufactured. v. State Iowa W. 427; N. Rowland, 327, State v. Iowa 33 N. 137; W. State v. Worthen, Iowa W. 330; Leete, 100 N. 253; Iowa Cartwright, 174 N. W. State v. Iowa 174 N. W. jury 586. But the court telling refrained from this.
We everything argued have not noticed here. do so To would way this opinion beyond any extend the limits opinion should be have, however, ques- extended. We examined all the tions raised, any none in possibility find which there error. We have regard examined record without to technical errors or defects, do which not rights affect substantial the defendant, finding nothing that denies the defendant any of rights to, he is seeing entitled from an examina- tion of the record fairly that trial was conducted before an experienced able and with judge, further that fact opinion our very any could well have rendered other did, verdict than the one it decision is therefore affirmed.—Affirmed. J., C. Hamilton, Kinteinger,
Donegan, Anderson, JJ., concur. Albert, Mitchell, Powers, Richards, Supplemental Opinion. complains opinion J. The defendant that the
Parsons, published a shotgun found of the stated at home state, true, defendant. it but it misstatement did so was a However, opiniоn facts. was immaterial. The shows were, facts relied the defendant had sawed-off shotgun Galesburg up where held that he was party; seen leaving charged action, the crime gun parked such a in his he was hand; go seen to to a car of the description of the he left town in, car and that put in this sole purpose car. The in regard gun was to had such show *12 gun could Captain shot Sauer. The very well undoubtedly the evi- fact, did, deduce from dence as to the gun this case. Appellee, C. Hansen
Lincoln Bank, Land Joint Stock v. J. et al., Appellees, Bewsher, Appellant. and A. H.
No. 43140. 17, 1935. December