*1 Only this is to be as costs. VA bear $151.50 taxed must remaining cost. When informed of the excessive cost attorneys they printing brief VA’s informed its required, evidently superiors, print- to have their their ing company printed which brief. a re- done Such quirement seems indefensible in view of the fact most satisfactorily cost printed matter filed this court is done at a per page. dollar one —Affirmed. Moore, part. takes no except J., concur who All Justices Kelley, appellee, appellant. of Iowa, v. Charles No. 50517.
May 8, 1962. Rehearing July 23, Denied Pratt, Heithoff and A. both of Council Robert C. James appellant. Bluffs, Attorney General, Huffman, Allen, John H. Assistant
Evan County Attorney General, Peters, Peter J. Pottawattamie Attor- *3 Caniglia George Knoke, County F. Assistant ney, Ross and J. and Attorneys, appellee. for by Defendant, Kelley, Charles was indicted
Thornton, J. Jury County of Pottawattamie March 1961. the Grand county murder in charged In the indictment he was with that February “Did, 22, 1961, he, on or malice afore- thát about with being, namely, Koehrsen, kill human Alvin E. in viola- thought Iowa, of section Code of 1958.” The indictment was tion “Did, aforethought, attempt- malice while read, amended to with being, namely, kill perpetrate robbery, a human Alvin ing to * * Koehrsen; *.” E.. guilty. change A pleaded not of venue to Mills Defendant granted jury, defendant. The case was tried to a County was was commencing May May 16, 1961. This trial concluded on jury May 18, 1961, failed to return a verdict. On appeared of the trial court show defendant with minutes present. request the State was At counsel. Counsel for his and questioned defendant took the stand was counsel the of his counsel were called He and his before the bench by counsel. his by the court. questioned and propounded by questions both his counsel and answer * * “* he fully had been
theceourt, he stated advised and attorney with now with- had counseled his and he wished to plea guilty plea guilty draw enter of to the crime his of first-degree provided by murder 1958 Code of Iowa as as plea guilty amended. Such to the said crime murder in open first then entered conrt and court now May o’clock orders that the hour A.M. 25th at of ten may County hearing Mills is fixed so that the court Courthouse * * provided fix the herein law. May 25 open court minutes for this statement: with “Court convened at o’clock A.M. to an order pursuant ten May 18, 1961, permitting made on for the the State showing the defendant to make and introduce evi- might dence as assisting either deem the court in determining punishment and murder to be adjudged against the defendant.” again present.
Defendant his counsel were The court inqnired of he im- the defendant if realized and understood the port first-degree charge murder. replied fully He did he been his counsel as had advised applicable Opening law. made and statements were taken. The record shows defendant offered evidence from 2:15 p.m. p.m. to 2:45 p.m. p.m. Arguments and from 3:05 to 3:08 were made for the State, concluding defendant and the 3:20 at p.m. The pronouncement court fixed June 7 at a.m. for the judgment and sentence. 25,1961,
At May held for the counsel stipulated the evidence heard in the trial before the jury previously judge heard the same trial “would *4 if by same it were resubmitted” agreed parties and “it is hereto that if the court shall consider all of that as it were and been stipulation had resubmitted the court.” This included all jury objections exhibits introduced in the trial. All including by jury exhibits made in the defendant again interposed by trial were and Addi- overruled court. tional were offered and exhibits admitted over defendant’s ob- jection May 25 hearing. judgment entry 7,
The of June shows the 1961, case was called, defendant his counsel present, contains the
1318 “* * following: *, and the haying fully investigated court now evidence, and considered all the facts and circumstances as shown by ease, record in study, and after exhaustive now finds Kelley guilty that the defendant Charles crime mur- * * degree, der the first charge against him, The defendant was informed guilty inquiry by plea, his was made the court if there was why judgment reason pro- sentence should not now be Judgment nounced and none was stated. en- and sentence were imposing penalty. tered the death urges six errors for reversal. Two them and will together. They are, are related be considered the court failing by erred to determine the of murder exam- witnesses, appellant’s ination and erred in considering the guilty plea plea degree. as a in the first I. any excep- Neither the defendant nor his counsel took objections entry or tions the trial court to the as by procedures shown court minutes nor to the the trial except objections court evidence which will discussed to, apply later. We are Code of asked and do 1958, provides: Iowa, which appeal defendant, supreme
“If the is taken record, regard must examine the without to technical or errors rights parties, defects which do not affect the substantial judgment render such demands; on the record as the law may affirm, reverse, modify judgment, or or render such judgment done, as the should or order district court have a new trial, punishment, reduce the but cannot increase it.” duty placed this court section 793.18 is to appeals very justice' of according decide criminal the case regard shown the record for technical errors. without 258, Iowa 55 N.W.2d A. L. Martin, requires judgment R.2d and citations. It us to enter such demands. Nutter, as the law State v. Iowa N.W.2d 24. And we not to consider mere technical are errors Jensen, do 245 Iowa which not affect the result. State 66 N.W.2d and State v. 1055, 292 N.W. Neuhart, *5 II. degree” the “first Defendant contends words plea included of guilty regarded surplusage. must be as agree. We of Martin, supra, State v. held the addition the we surplusage only. words “in The degree” the first indictment in Martin or allegations perpetration contained at while the tempt perpetrate rape robbery contrary or to section 690.2. import The assigned to indictment there was the same as the alleging A. B. C. D. under the form indictment murdered short act, Iowa, 773.34, any as other Code construction nullify provisions 690.4, Iowa, would of section Code providing degree for the of the of murder. It is ascertainment pointed there out our there is under law but one crime murder degrees crimes, gradations and the do not distinct constitute but according of the permit punishment same crime devised to Phillips, circumstances. State N.W. When we 777.12, Iowa, providing consider section Code of plea guilty only by open can be made in court and “ himself, substantially defendant form: following ‘The pleads guilty defendant charged that he is of the in the offense necessary indictment’ it”, plea only follows the admits alle gations unnecessary plea the indictment and in the words are surplusage unnecessary the same as words in the indictment.
III. It therefore required follows the trial court was plea simply plea treat the as hold a to murder and degree determine in section provided as “* * Iowa, *; if provided, Code 1958. It is there but by the examination of witnesses, is convicted upon determine the guilty, degree, the court * [*] must, question is, record here was this done? The shows stipulation by parties the trial was to consider all of the produced by party either trial before the jury well as whatever or the evidence either the defense complain wished to offer. offer of Defendant evi does dence on any way his behalf limited in was refused he was in presenting question bearing on the murder. stipulation fact the trial court considered evi previously dence jury heard it in does not constitute trial a failure to determine examination witnesses.
1320 stipulated the evi- particularly where was
This is true here it right defendant’s appear it dence would be the Nor does same. any in cur- manner to cross-examine witnesses was the State’s of the evidence The court heard and considered all tailed. called to produced had been would have been if witnesses the the circum- testify May 25, in hearing the held 1961. Under Iowa, rights stances Code defendant’s under section fully protected. M’Cauley States, (Morris) 1 early case, an v. United Supreme Ter of Iowa predecessor, our the Court 690.4, Code ritory, considering in a statute similar to section Iowa, 1958, was faced with a similar situation. *“* * be provided: prisoner then and if such
The statute proceed shall open court, the court convicted confession degree to the open court determine examination witnesses accordingly.” pronounce crime, of the shall sentence guilty his of not after plea The defendant there withdrew pleaded prosecution jury, and had the presented the its case to be thereupon to guilty sentenced charged, to the crime and was hanged. after The record did were examined not show witnesses guilty plea, or the manner determined the the court contemplated by of the crime statute. the to inquiry said: but and decision as
The court an “* * * necessary. rendered precise offense are more nature of the The record appear of record. inquiry That and decision should withdrawn, the had been plea guilty not that before the shows all been had prosecution, testimony chief, part on the ground on therefore, objection, presented. see no valid We it to decide enable to did not hear that the court precise offense, nature * * did conclusions the court’s case reversed because was appear not of record. 222 Iowa Grattan, holdings
Similar are found State Ferranto, N.E. 112 Ohio St. 268 N.W. State v. 227, N.E.2d Amrine, Christopher ex 362; State rel. L. R.2d 34 A. 1947); annotation, (Ohio Com. Pl. only be deter- plea can IV. court treated How the trial plea 1961, when the May 18, from record. mined On appeared murder plea first-degree like a and the entered May may then fix for “so that the court set punishment provided herein as law.” court minutes May state, permit- for court was convened “for the ting showing Iowa and defendant make might assisting introduce evidence as either deem court in of murder determining the adjudged against Though the defendant.” did in- the court quire of again fully import if he understood the charge first-degree murder, it does appear question the court considered the closed toas *7 degree, giving every but rather the court was the defendant opportunity plea to understand the of his effect and that the purpose of hearing was twofold, the to determine the degree, and punishment. fix again, Here defendant does not claim now right witness of was not heard. If a had been denied our course would be clear. If the considering plea court was the solely plea guilty first-degree as a to murder there would be reason no to state including the “for assisting the * * * * * in determining degree court the of murder The court for clearly minutes June 7 the show court considered all the and did fact determine the of murder. We find no merit defendant’s contention the court considered plea guilty the first-degree as a murder and including second-degree not as murder and if manslaughter evidence would so warrant. The affirmatively record shows the fully performed the duty to determine mur- required by der as Iowa, Code of argues penal strictly Defendant statutes are construed. agree. agree something required by We But we do not statute done, not been has when the record before us shows has. There question duty placed court, is no on trial and there is question duty performed. no but this All of the was either defendant or the State wished to offer was before the finding The court. court made a based on and substantiated such evidence. We not for overlook the duty do a moment solemn on kind, cast us in a case this but cannot a we reverse case rights, defendant has been no where accorded his full more duty
than can he has not. we affirm where Our not to the alone, vigor defendant but of Iowa as well. Defendant the State urges requires result ously Martin, contrary supra, State pointed out, in Martin was here. It should be the defendant hearing, complete no the defendant had a full and accorded here hearing.
Y. Defendant contends the insufficient evidence is finding first-degree argues murder. He sustain specifically premeditation is no evidence of there intent kill. companions, defendant record does with two show Charles (see Brown, 113 N.W.2d 286), Brown Brown, came to Council from girl friend of Bluffs Omaha February girl a cab. men left the at a tavern. Brown, armed, both defendant with a .32-caliber Defendant .38, revolver, deceased, Brown with a E. asked Alvin they for a lift a few blocks. After in the ear Koehrsen, stop. go where to and when to directed the deceased While they get stopped the deceased tried to out the car and car was Leroy him. At the of the crime a shot scene Mr. defendant car, he within 50 feet of Harmon testified he heard R. reports, groan he heard a sharp saw deceased three get ground. He saw out the car and slump At the the crime the deceased told a past him. scene walk times, him. He had been officer men shot seven police both shot *8 right cheek, through neck, once once in the in the left once cage. in left of the rib The de times side wrist, and four fendant [*] * himself defendant’s says, “I do not know how statement also shows Brown and defend many times I fired stealing deceased’s car and neither process in of ant were pulled gun had on the Defendant it. could start them of telling go. him where This evidence is while deceased It in the record. constitutes substantial any way in contradicted kill, deliberation, premeditation and intent malice, of evidence killed deceased while evidence as substantial as well robbery. of a perpetration in engaged need not exist for deliberation and Premeditation deadly killing. a previous Use length of time particular malice, opportunity to deliberate is evidence weapon with Brown, premeditation kill. deliberation, and intent to State v. and 286, 290, citations; State 253 Iowa 113 N.W.2d 731, 736; v. 101 N.W.2d v. Jackson, Iowa State Leedom, Nutter, 248 Iowa 81 N.W.2d and State repeatedly Certainly 76 N.W.2d when a man range another fires .32-caliber revolver at the short a within an he did say cannot heard to he width automobile consequences of As not intend the natural and such act. obvious Jackson, supra, page Iowa, page of 251 stated at 101 N.W.2d: goes deadly weapon, “He who a armed with loaded revolver, purpose committing robbery, for the and uses urge not in a robbery, strong position course premeditation.” no there was deliberation or supports finding. the trial court’s urges VI. Defendant trial court was error admitting testimony of Kenneth Earl Vencel at the to determine the murder and the punishment, because independent it showed an offense with the one which he was charged. Mr. him money Vencel’s car and his taken were from by defendant and He Brown. was shot the defendant when they standing apart. away, two feet He able to run was as he ran he was hit more two shots the back. More shots Miraculously away, were fired. Mr. Vencel to run and was able happened p.m., lived. This 8:20 or February about 8:30 Harmon, 1961. Mr. the witness first the scene when the placed deceased, Koehrsen, shot, Mr. time at 8:10 about p.m. or statement, later, Defendant’s confession discussed shows Brown and defendant to Council Bluffs for the came stealing car. The of Mr. and Mr. Harmon Vencel within a half-hour’s time defendant murdered Mr. shows attempt automobile, in 'an steal his Koehrsen to' abandoned attempt nor because neither he Brown start the car, could doing then Mr. shot Cer stole Vencel’s ear while so him. shooting him tainly stealing the acts of Mr. Vencel’s car closely are so place intimately related in so asso time attempting ciated with Mr. car to steal Koehrsen’s and murder *9 in- ing they him that form this continuous transaction —in 1324 held stealing repeatedly We have a car at all cost.
stance, of transaction, what show the whole is admissible to such evidence immediately the act preceded what followed immediately and quo or showing the scienter complained of, Brown, 658, Iowa party charged. 253 animo of the State v. Iowa 292; Holoubek, and 246 668, 113 N.W.2d State v. 286, 109, 113, 863, N.W.2d and 66 citations. defend- degree murder,
In determine the issue, ant’s crime murder was not guilt or innocence of mind is of murder. The state was the inquiry. be Mr. Veneel’s an element to determined such an prop- and relevant to that issue was material erly Schlak, 253 admitted. State Iowa 111 N.W.2d Linzmeyer, 248 N.W.2d 291; State 79 79 Triplett, State v. 248 Iowa N.W.2d 391. thought defendant’s that his confession
VII.
It is
charged,
crime
regarding
and statements to the officers
shooting
shooting of Mr.
circumstances and
Vencel
another
guilt
inadmissible on the issue of
Omaha, were
to be inflicted because defendant was
only
urged.
years old
time.
reason
minor, 20
at the
This is
holding.
He
no Iowa cases so
He cites two
concedes there are
(Okla.
State,
1960),
cases, Olivera v.
1325 presumed. presumed contrary, is not a confession is On the voluntary. 829, 303, be 113 N.W.2d Jones, State v. 253 Iowa 690; 44 citations; Brandt, 382, State v. 242 N.W.2d Iowa S., page 23 C. J. 230. It should Law, 829, Criminal section pointed out, plea guilty. defendant had entered a On to be issues determined it was to consider what defendant himself said.
VIII. to reduce the sentence Defendant asks us imprisonment. urges death our to life He us to reconsider position 793.18, Code power granted by this court Iowa, pardoning 1958. In effect he asks to exercise us power and do have commute the sentence. That we power long holding is the We standing of this court. have not reduced a imprisonment death sentence to life where same upon was assessed to murder and after a to determine punishment. of murder and to'fix the This is justi a court for the correction of would be errors. We fied setting reducing only aside or the sentence this case if there is a clear showing of dis an abuse of the trial court’s cretion imposing the penalty. Nutter, maximum State v. 248 772, Iowa 81 20; 528, 103 N.W.2d Smith, State 127 Iowa N.W. v. 769; State v. Hunter, 361, 243 Iowa 51 N.W.2d State v. 409; Bruntlett, 338, 240 Iowa 450; Wheaton, 36 N.W.2d v. 223 State Iowa 759, 273 N.W. 851; State 222 268 Grattan, Iowa 489; N.W. State v. Harper, 886; 220 258 Iowa N.W. State v. Tracy, Olander, Iowa N.W. 186 N.W. 29 A. L. R. 306. bearing
Defendant has offered much evidence on his un- past favorable life. There epilepsy is evidence he suffered from and some diagnosis that such had not been confirmed. a letter by solicited able by counsel for defendant, written Dr. Richard W. Anderson, M.D., Director, Psychiatry Outpatient Adult after a long history Clinic, The Medical School, University defendant, this of Minnesota, we conclusion, “* [*] find, [*] nor any is there psychotic evidence of reaction which would Kelly indicate that Mr. [Kelley] responsible is not for his acts.” The following Nutter, statement from page State v. at of 248 Iowa, page at 24 of 81 N.W.2d, appropriate is here:
“In the appellant instant did or claim case not make justification reason or killing. for the It was ruthless and vicious. There is no being guilty doubt about his murder first legislature as such has been defined and construed pen- legislature provided court. The has a choice two penalty imposed alties. The one of two. It was within those legisla- discretion of the trial court and so intended *11 ture. In thereof, the of exercise we find no abuse that discretion. of of appellant’s
“Much the record is devoted to evidence early life and No made complex. his conceded mental claim is that he is do insane such These matters not as to excuse the act. appellant entitle to relief at our hands.” IX. When of among there members is a division the upon court as to a dif- the determination of a case based of opinion ference applicable law, as of as to fact rules giving application law, situations of we are rise to the of rules opinion unnecessary majority reply it is opinion for the or to call appearing However, attention to in matters the dissent. in view may say of the dissent we we the entire have considered record this case submitted. just as submitted and what was The defendant record proceed upon printed elected to here argument and brief and Code in a as civil case. Section Iowa, 1958; stated, and Court Rule 16. the taken As before jury by the stipulation for the State and counsel the by hearing defense to be considered the on the trial court to determine the fix This guilt punishment. and to the stipulation appears printed in amend- by the record the State’s pages ment thereto of and Appellee’s at 13 and 14 of Denial Appellant’s Amendment to Record Abstract of and Appellee’s Brief and Argument. in the jury evidence taken is set out both before the prepared
record appellee’s counsel for the defense and testimony of three Amendment. The defendant abstracted the witnesses, witnesses, testimony defense of four and that of The State consisting pages. defendant of 14 its testimony amendment to of five addi- the record abstracts the tional testimony witnesses and further witnesses whose of two consisting had been defendant, abstracted by pages. seven clearly the point very ably
Counsel for out jury trial court matters submitted considered they upon counsel complain. which no reflection defense It is in a apparent they the record man- state it is abstracted commendation client, ner it is a most favorable to their fact ability which presented with defense this case. counsel Despite appear. their error efforts does not —Affirmed. except Larson, J., dissenting,
All concur Justices J., sitting. Moore, J., respectfully may dissents: the season It be
Larson, year, the inadequacy apparent confusion record, surrounding thereto, of guilty pursuant and the or the influence and criminal exercised dominance a hardened on physically mentally youth, disturbed but nevertheless I cannot concur in an in this affirmance of the death sentence majority case. The other crim- seem to treat the matter appeal inal with assumptions all and inferences favor regularity in proceedings. greater I I do not. feel far capital of care appellate must exercised courts *12 involving supreme offenses in penalty may the that than those later by procedures. be corrected legal due
I. Subsequent jury to defendant’s a trial before the charge that aforethought, attempting he with “did, malice while ** * perpetrate to robbery, Koehrsen”, a kill the jury, Alvin E. from county persons selected suffering where from ailments afflicting disagreed. as those treated, For are days some reason, undisclosed his changed two later he to guilty and upon mercy threw himself the of the One week court. later, at later, stipulated I shall it discuss was that Judge again the could in consider the submitted evidence the previous However, trial. that record we are not favored with and, while appears this exclusion to the be overlooked ma- jority, I feel properly pass we cannot upon competency the relevancy testimony of that shown in the record unless before We fully perform required us. cannot our function by section considering 793.18, Iowa, by simply Code of
1328 produced testimony May hearing. It will do
the at the not Judge only accepted to considered for us assume the learned duty performing competent relevant matters proper, of the full crime, in the absence determine the to upon which he acted. record recognized two distinct and
It must be there were upon decide, types issues which different of evidence different to applicable. properly unlimited somewhat given to admissible determine the to must be materially issue of upon restricted much eliminated the many assumptions necessary Too vital are crime. say here for without doubt that the defendant had fair us just trial and received a and reasonable sentence. prior
What was the record Did the trial? court act objections properly overruling all defendant’s assume argues received that trial? The State that we should rulings only and that those were correct relevant considered, citing Walker, Bowermaster v. 1137, 1141, 208; Haynes, N.W. Thrasher v. 221 Iowa Law, 589(1), pages S., N.W. 22A C. J. Criminal authority I to pre- 352-354. do find this extends so far as regularity rulings capital of all court sume the offenses. Code, 1958, fact, provides our statute otherwise. Section supreme “If provides: appeal defendant, is taken ** To me this means court must examine the record 572, 581, record. In Brainard, 25 Iowa we said: whole appeals criminal duty “It is made to decide according very justice record, the case as shown regard It without to technical errors. does not harmonize with spirit statute iron rule lay the humane of this down the inevitably visited defendant must and in all cases be with consequences of the omissions errors counsel.” Also Martin, 243 Iowa N.W.2d see State *13 34 A. L. R.2d and citations. although that defendant’s counsel is, therefore,
It submitted objec- stipulated Judge could consider evidence and trial, previous performing it in our tions before are not we assuming statutory duty by matter the evidence serious this prior introduced in the proper trial was and would sustain a finding degree that the degree. very this crime was first The regard least we should do in require this is to record of those a proceedings so we can determine for whether ourselves it alone justify would finding. such a
II. requirement 690.4, Code, of section that a charged defendant given hearing with murder be to determine a degree by crime cannot be waived even pleads himself. When he it guilty murder, to the crime of then duty becomes the evidence, court’s to hear the to examine the witnesses, and to only competent, consider relevant and testimony in determining degree. Martin, supra, State v. N.W.2d 258, 34 A. L. R.2d and citations.
The State does dispute rule, not majority recog and the nize it.
Did the comply rule, this instance with that did set hearing for purpose! The court’s record its May “court minutes” of feeling leaves me with a just doubt as to what was meant and what was understood “* * * parties concerned It at that time. states defendant now wished to plea guilty plea withdraw his and enter a not guilty first-degree the crime of murder provided 1958 Code of Iowa as amended. Such said crime of murder in the first was then entered open May court and the court now orders that the 25th at the hour of hearing ten o’clock County A.M. the Mills Courthouse ma/y so that pro- the court herein as fixed fix (Emphasis vided law.” supplied.) questions great
Two immediately concern are raised. Was compliance requirements this court action with the 690.4 of the Code, give and did it defendant and his counsel due notice of the place determining time and questions crime? If are answered in the these think negative, they be, rights which I must then defendant’s fully protected given opportunity were not fair he was prepare important for this trial formal and most issue. This (cid:127) alone would be reversible error. majority defendant knew the assume *14 given every oppor- May 25 and he was then hearing contend degree, of he did present ease on issue tunity to object not he did offer further hearing, to the and that although opportunity fact, him. was afforded This evidence if error created a lack of due fact, it is a cannot cure the degree opportunity fully prepare notice to on this issue of and an guilt. all hearing appears of At defendant’s evidence mitigation punishment and his related to disabilities Code, Therefore, serious doubts weakness. Section properly prepare opportunity do full to given arise that he was prop- degree for the issue crime. Unless that issue was of the erly error. tried, case, under Martin there was reversible in doubt purpose May is further left of the They part: “Court minutes of that date. stated the court’s # # * permitting the State Iowa * * * convened for the showing and the defendant and introduce evidence to make determining then assisting for the court in [and afterthought] degree an of murder to be ad almost as and the * * '* against again inquired judged the defendant. The court * * * * * * import understood of the defendant if he charge first-degree plea seriousness of his to * * supplied.) (Emphasis murder first-degree not to entered was I submit the first duty murder, that the court’s only murder but to examination degree crime determine the of his punish- witnesses, to consider evidence and thereafter them determine upon inflict the accused—not ment it should presumption most violent or in the order. The together, reverse evidence, whether admitting all the of all is the court fix proper evidence only improper, considered proper disappears. appellate function law, If our degree. that be the may consider the court I submit further that the rules by the same degree determining governed no less. It must jury, and applicable trial to a to a guilt. the issue be relevant principal of the issues one brings us to Martin, supra. This shooting properly appeal. of a second the evidence in this Was degree determining crime if it considered, was, charged testimony proper any purpose herein? Was Yencel’s except fixing punishment been after the issue had determined ? *15 general
III. The The in is well settled. rule such matters prove produce State cannot or that the accused has aiding the committed alleged a crime not the indictment as proof Porter, guilt 229 charged. of his of State the crime Rand, Iowa citations; and N.W. The 25 N.W.2d A. L. R. and citations. 800, 170 ordinarily basic reason is that the commission another crime of has no for of the crime relevance to commission which of being proof independent defendant is The an tried. crime, entirely different, of finder may incline mind the fact might belief that crime with the defendant commit the also which he under rele- charge. is If there to its is fair doubt as vance, and if of possibility danger there that is the misuse evidence, supra. it should Rand, be excluded. State v.
Here
objections
there
timely
testimony
one
Kenneth Yencel,
who
he
stated
was assaulted
the defendant
twenty
about
alleged
minutes after the
this indictment.
crime
story
He told
which,
seriously
proven,
if believed or if
would
prejudice any
Judge
trier of
against
defendant,
fact
whether
jury.
He said the
accosted
one Charles Brown
him
p.m.
joint.
about 8:30
He
and wanted a
to a beer
ride
refused
pulled
and Brown
gun
driver’s seat.
took
Kelley,
Defendant,
gun
drove
then held a
on him while Brown
do,
to a vacant lot.
Kelley
Brown told
he knew what to
got
Kelley
when Yencel
out
car
him
heart.
of the
shot
near the
ran,
When
next
shot
fire,
his
shot did
but he was
Yencel
twice
in-
attempt
escape.
clearly-intended
more
his
crime
planned
ference of this
that defendant
is
Unless,
and intended to
stolen.
kill Yencel when the car was
then,
properly
highly prejudicial.
admissible,
it was
prosecution, proof
a criminal
which tends
show
accused is
of other crimes
the commission
nature
times,
though they
offenses at
the same
other
even
are
charged
one
inadmissible
indictment,
generally
as the
purpose
particular
showing the commission
all, on
if at
charged.
convicted,
to be
crime
accused is
charged
offense
showing
guilt
particular
his
competent
prove that the accused
information.
It is not
show
like nature for the
committed other crimes
infor
in the
charged
ing
likely
he
commit the crime
would
course,
crimes, of
of other
mation or indictment. Evidence
information
which
compels
charges
to meet
a defendant
defense,
him in
gives
information, confuses
or indictment
no
States,
Kempe
v. United
variety
raises a
of false issues.
F.
States,
Cir., 294
8th
Cir.,
;
8th
There are several to that yet developed into been said has not this braneh of evidence law Long L. Rev. rigid a set of rules and formulae. 29 Mich. Vance, 119 Iowa ago exceptions *16 we classified such in State v. Crabbe, 685, 687, 94 Also see State v. 686, N.W. 204. Porter, supra. It was announced 272, 204 N.W. and State v. defend against a prove in the Vance case cannot that “The State a founda alleged indictment, either as any crime not in the ant proofs he is separate punishment aiding the that tion for or as may rule exceptions to the charged. of the crime competent offenses is classified as follows: Evidence as to other or motive, (3) absence mistake (1) (2) intent, to establish accident, (4) embracing the commission a common scheme of one proof that or more so related each other two crimes to identity person prove (5) others, to and tends on Cases were trial.” charged with the commission of the crime statej exceptions applied in this illustrating some of cited as these applicable not here. offenses can be of collateral perhaps much evidence
While accused, of an guilt issue or innocence found relevant to the probable prohibition of its rule of established because was recognized those exceptions finder are misuse of fact. The and allow little which tend to limit and restrict misuse improper chance for inferences. gen- plan design scheme, evidence of common or
Thus Cir., 123 States, 8th Brickey United erally held admissible. exception which the ma This to be the under F.2d 341. seems disagree. I testimony proper. must jority would hold Vencel’s steal no defendant set out to There is evidence that Brown and pur anyone kill as a cars, automobiles, kill or to owners steal car, pose. hand, appears they it out On the other set start, was it the owner stolen, one and later when refused to and blamed, abandoned, v?as car shot and killed. That was then complete. appears they twenty that crime minutes Some later car, apparently decided did decided so, to steal another then suppress by shooting I fail to find the owner. separate although these somewhat crimes, two distinct similar, showing a plan, design, which scheme would permit shooting charged evidence of the second offense. simply there, It only remaining is not for which shooting pro second offered would would be be to show the pensity words, accused commit such crimes. other fact that second assault committed is used basis as a of predicting that defendant committed the first crime with malice forethought. Thus, scheme, plan of common the absence or design, present here, only purpose that is the for which this evidence used, could be prohibited and that is under well established rules Ladd, of evidence. on Cases Materials Evidence, Second Ed., pages Evidence of Other Crimes, to 379 inclusive; Wigmore Evidence, Wharton’s Criminal Evidence, Volume 1, Ed., Eleventh sections pages 486-491; Jur., Evidence, 311, pages Am. sections 289-292; of Evidence, page Uniform Rules rule majority separate seem to these believe because *17 assaults time, shooting within second committed a short position most sound, admissible. That is not for authorities recognize bearing only upon the element of as remoteness weight admissible, competency of evidence otherwise not the propriety of the evidence. In nothing
IV. this record there indicate is to the court improper purpose. did not consider It Vencel’s an is evident that it considered as crime and thought combined issue without of the fact limitations could not be used to determine alleged second offense prejudicial error and guilt. Thus it committed required. reversal is 549, 544, States, supra,
In Fish F. v. United trial matters character necessitates the “Evidence of this said: subject is issue, exceedingly prejudicial, is to the main collateral only in a received, all, should if at being misused, and be to plain ease.” F. it is States, In supra, Paris v. United * * * away the attention said: “Such tends to draw evidence * * * to trial, from consideration of the real issues on * * * * * * with unconsciously verdicts accordance
lead to * ** on trial.” rather than on the true issues false issues charged. While degree of the crime That issue here is the prove premedita kind will sufficeto little evidence (State 1275, N.W.2d killing Haffa, tion in a v. 246 Iowa independent assault of an citations), the evidence here at another intent to kill Vencel tending show a malicious How out above. squarely prohibition time falls set within the time of prove intent at properly it tend to does killing of Koehrsen? admitting evidence always be exercised
Care should
hearings
offenses; otherwise,
might
other and
trials and
distinct
real issue
become
involved in collateral matters that the
soon
so
Cir., 31 F.2d
States,
would
Sauvain v. United
8th
be lost.
1, supra,
page
Evidence, Volume
at
In
Criminal
Wharton’s
exceptions: “In
relaxation
said
loose
as
ad-
may
be
danger
accused is that
rule,
defend,
upon to
yet
not
been called
offenses that he has
duced of
acquit
himself.
tried, might
able
fairly
if
he
which,
accused has
offense for which an
place, the collateral
the first
crime, that
inclination toward
prove his
been tried tends to
trial,
charge under
guilt of the
is,
probable
more
to render
supplied.)
(Emphasis
rule.”
violation of the
which is an absolute
App.2d 482, 246 P.2d
Carvalho,
People
112 Cal.
Also see
P.2d
550, 145
People Albertson, 23 Cal.2d
of other
considering
required
“extreme caution”
*18
Douglas
Ky. 391, 394, 211
offenses,
Commonwealth,
and
v.
“finely
prejudice
a
inten-
156, 158,
resulting
as to
when
S.W.2d
attorney
goes
zeal
little
prosecuting
and faithful
in his
a
tioned
bring
in
crimes which
attempting
far
evidence of other
too
his case.”
necessary
not
the establishment of
are
at all to
in
941, the court
Atkinson, Mo.,
293 S.W.2d
State v.
passing
question
is not ad-
“Generally,
said:
commission of
missible to shoAv
defendant
is
of the
that
independent crimes,
separate
other
for a
either as foundation
* * *
though they
same nature as
even
are of the
charged
Atkinson,
the one
v.
the indictment.” Also see State
Mo.,
This is not the where one assaults one situation injured fray (People Lopez, several others 135 Cal. are 965), attacked, 66 P. killed nor several were one out- where right upon Marble, 38 Mich. (People others were fired 117). It was not all or one transaction even another offense com- escape, in an attempt usually mitted It was held admissible. imagination under no offense, stretch of an included nothing continuing purpose there was to show motive or simply in the second separate assault. It was unrelated crime, and exception under no to the rule was proper upon Yencel issue of crime charged, pleaded guilty. Furthermore, to which we as- must jury there was prior sume no such evidence introduced If trial. it was considered im- not then submitted because it was proper, why performing would it be different when the court jury usual fixing function the crime ? Obvi- ously the jury State felt such would have been evidence before prejudicial hearing.- Who error, and I see no difference in this say Judge improper can is vulnerable to such would I prefer not be influenced not to evidence? the chance, take man’s life at with a stake. pointed Martin,
Y. supra, As out case State v. 1323, 1327, R.2d 34 A. L. N.W.2d generally capital held courts will appellate eases the disregard determining whether technical for the rules * * “* exception gen- the defendant had trial. an a fair
x336 *19 questions
eral rule that in not raised the trial court will not be in appeal considered on exists case material which defects are apparent on record the face the and which are fundamental character, clearly injustice, their or which show manifest es- pecially capital S., Law, J. cases.” C. Criminal 1669, pages 270, 271.
We further duty said the Martin case: “The most solemn upon any devolving imposition court is the of the death sen- tence, in proper by judi- a case. No human should life be taken every requirement statutory justice cial order until law and complied been has with. And revolting the more cruel and the crime which the defendant accused, stronger stands popular feeling public indignation, the more meticulous in observing rules, may should the courts be these no man cry be and executed convicted because of the hue and raised against him, only every respect.” but after a trial fair very least,
At the accepted the evidence to determine de- degree guilt May questionable. fendant’s on 25 is Without it we full have no record before asus to the of degree. AVithout such evidence of guilt, of his under State v. Martin, supra, the cause should remanded hearing be for a full degree. to determine
For all of great these reasons a shadow is cast over these proceedings. hearing required by Was a as statute held to de- termine the of his 690.4, Code, crime? Section 1958. AVas given the notification hearing adequate defendant of that when set? May relevant, Was the evidence taken competent proper, prejudicial? doubts, was it The benefit of all contend, given should court, be the condemned man this I am not majority convinced the have done so.
VI. Punishment of an individual should not be determined by the act he committed alone. That is one of why the reasons a broader field of evidence and other humanitarian considera- rightfully tions are examined in reaching upon punish- a decision in a given ment case. punishment, youth On matter of person, physical capacity, a his and mental his weakness as a person, capacity his to avoid of others, the domination where present, every giving insight factors are other factor an responsibility accused, provide basis judgment, in pronouncing sentence. alone, judge we were to acts accused first- .If
degree murder com- properly had been determined as the crime mitted, there might question punish- be little that the maximum ment given. upon just could be But is not the which basis determination may be pertaining reached. Other factors responsibility measure of explored must fullest case involving penalty. the death
Then what respect is the situation in this defendant? At May defendant submitted number of exhibits tending to show his physical disability. mental and These dis- closed he had dizzy spells suffered from since and blackouts *20 that his in diagnosed ailment was epilepsy 1956, as that he was given a discharge January medical from the Marine Corps epilepsy only due to days service, after 17 in the he that had been found psychiatric in need the of treatment at medical school of University February the 1960 and of Minnesota that suggested a Sodium, infirmity treatment for his Dilantin was grains day, Mebaral, grains twice He a at bedtime. 1% 1% diagnosed “sociopathie was further evi- personality”. as a easily dence showed he was led and the inference is clear that at the time of this crime he was under domination one the Brown, Charles Alvin E. Koehrsen. jury killing convicted It may be of aid to time, any is the court believes punishment may hearing the set for fixing it be received at purpose. Code, If all the evidence 690.5, Section May alone, I taken on 25 was considered under error, case, would find no if then State but such was the had, requires, for hearing yet v. Martin no been the law has as the degree guilt, determination of the the of defendant’s hearing the of punishment premature. matter pun-
Although
reduce
past
have in
refused to act to
we
the
pointed
many
out
ishment,
times
members
this court have
Olander, authority
that we do have the
to do so. State
Bruntlett, A. R.
Iowa
N.W.
L.
1958, provides:
Code,
Due to the fact that doubts admissibility part defendant, and as to the this crime on the I reduce the fixing degree, would considered imprisonment, which would be to life sentence for second- adjudged could be either public of the protection many so a record discloses first-degree murder. When We the sentence. duty to reduce legal doubts, I think is our obligation A pass to tbe Governor. commutation should not probable. is not person of sentence of such an afflicted trial, I in case grant a new the alternative would guilty murder, I order would continued complete proper, only which determine the competent considered, relevant and and that would subsequent fixing degree, be received to judgment and rendering aid the sentence. Chicago Tilghman, appellee,
Charles & North Western Railway Pletcher, Company, corporation, and Carroll appellants.
No. 50498.