*1 76; Royer Erb, 705, 584; 259 N.W. v. 219 Iowa 474, Jensen, ex rel. Bar Assn. 171 Neb. 105 N.W.2d v. Witnesses, 648; citations; S., (b), page 98 C. J. section page Jur., Witnesses, 58 Am. section photographs The matters shown these are inconsistent quoted testimony, upon explanatory cast doubt it or are If permitted except thereof. to show that no one plaintiff certainly fell over the hose she should allowed part during show that of the time testified to the did hose from in extend out door front entrance but had been photographs showing moved. the hose fastened into the merely concrete —not at the sill—cast doubt defendant’s claim it is safer for invitees not to fasten the hose but to leave it loose. Corp., 929, 960-962,
LaSell Tri-States Theatre supports amply 11 N.W.2d the view photographs these were admissible.
I would reverse. Thornton, join JJ.,
Peterson in this dissent. Iowa, State of appellee, Ronald Stump, appellant. Maurice
No. 50605. 210) (Reported in 119 N.W.2d *3 January 15, 1963.
Rehearing Denied March *4 McManus, Moines, R. Des appellant. J. of for Hultman, Attorney Evan General, John H. Allen and Byers, Attorneys General, Harry David E. Assistant and Per- County Attorney, appellee. for kins, Jr., Defendant, Stump, Ronald Maurice was indicted Snell, J.— by grand jury Polk County for “Murder in the First Degree as and defined sections 690.1 690.2 of the 1958 Code * * of Iowa charged The indictment that defendant “did premeditation, aforethought, malice deliberation and intent kill, Daly to County, murder Michael Polk Iowa.” Defendant represented by experienced able, and resourceful counsel his own choice. indictment by was followed defendant’s witness; require physical motions to examination of a State quash to and indictment; motion set aside demurrer in- to dictment; application for bill of particulars; motion require plead responsively State to to defendant’s motions; petition production for papers; plea of books and and a guilty. not Prior defendant, through to trial counsel, gave notice of reliance defense place was at some other at the time of the alleged offense; commission of the commonly a defense known as an alibi. jury
Trial resulted in a verdict of guilty of murder verdict, degree. the second The usual motions to direct a judgment arrest and for new trial were made and over- judgment ruled. From imprisonment pursuant to Code appealed. section 690.3 defendant has
I. Pursuant 793.18, section Iowa, Code of we have regard examined without the record to technical or errors de which fects do not affect the rights substantial parties may in order that there such judgment on the record as the duty law demands. It is our to determine whether or not de trial; has had questions fendant a fair review of law pro and cedure; proper determine whether evidence has been admitted improper rejected, whether there is evidence support questions issuable of fact determined jury. pass upon It is not for us to questions decide issuable properly jury. fact submitted to the Under our Constitution juries that is what statutes are for.
Detailed recitation of voluminous testimony admitted for germane consideration but not our problems necessary. *5 objections record, replete with the entire We have examined limita- exceptions taken, but will within reasonable made and argued matters and claimed our discussion to the confine tions error. to be years time of trial. was old at the He had
Defendant In 1961 he was em- college with honors. June graduated from college in in 1959 and 1960 he in Des Moines. While ployed marry As engaged Skultety. Leanna met, dated and became Skultety they incom- passed concluded that were Miss time religion. things, particularly Her ardor cooled patible some engagement. easily Defendant was not dis- she broke the and gain young lady’s efforts to couraged persisted and little success. He had favor. Skultety began January dating reg- 1961 Miss met and Daly. They engaged marry in Feb-
ularly Michael became upsetting developments such ruary 1961. Faced with defendant Skultety derogatory Miss report showed to obtained and prevail. Defendant’s dissuasive efforts Daly. did Michael evening 9, 1961, Daly Skultety of June and Miss On driving they stopped her car. After around together in were Daly’s parents. Skultety the home Miss testified in front of following them. A car had been man identified that another got Daly out of Skultety as the other car. by Miss Skultety of her car. got out She testified she and Miss noise, Daly; Daly and saw defendant shoot turned heard that defendant walked n car; closer, the back fell toward screamed, footsteps, She him and fired. heard heard over stood go. ran into the house the other car She and called saw police Daly’s An ambulance and the were father. called Michael apprehension of for the defendant was sounded. and the alarm hospital a few hours later as a in the result Daly died weapon The murder wound his head. was never gunshot produced. eyewitness Skultety only shooting. to the Her
Miss was positive defendant as the identification of assailant unequivocal. presence to defendant’s witnesses testified as
Other sounding like hearing firecrackers, shots neighborhood, *6 disagreement among departing was the seeing car. There the departing car. There description to the of the was witnesses support the ample identifying defendant as assailant to testimony, derogatory nature, verdict. The extensive a principals the three conduct of this prior to the relative repeated need be here. tragic triangle love custody in was taken into Ottumwa the Defendant home a was at the of relative with morning June He part night. spent the latter the had at least whom he p.m. that between 7:30 and on June Defendant testified shooting. prior for This was to the He he started Ottumwa. 10 and 10:30. Defendant arrived in Ottumwa between said he who testified number witnesses as to his activities called a computations and time and distance their own observations and present not have could been at the time show that defendant shooting. place and a
II. called as witness his behalf Defendant John deputy sheriff, a but Moody, at time trial at time agent. shooting insurance The witness testified life that Daly had dinner with and another he Michael on June Daly application $10,000 took from an for and that time man at beneficiary. naming Daly’s premium father as The life insurance never and paid, policy the transaction consummated was not “there During the conversation mention” was some issued. never Skultety. Leanna objected testimony to the point for the State this counsel At testimony as immaterial. on motion the Court struck and proof, in defendant made an absence of Later offer Daly between that in the conversation witness jury, Skultety pregnant, Leanna Daly said “he had that she Moody, guessed months that he pregnant three was was then testimony marry her.” offer of the The was going have to rulings proper. were refused. Daly signed applica an
Testimony that dinner time at payable for life insurance his father pay did not but tion charge as defense to the that later that wholly immaterial was by defendant. he was shot evening Skultety by Daly that he had Leanna
Statements rejected. probative no value properly They were had pregnant as a except prove motive in defendant possibly whatsoever rejected help defense. The fact suitor. That would not Skultety by Daly not in pregnant was was issue Leanna no had so in direct examination as was secret. She testified State’s witness. argument
Defendant’s
evidence about
un
an
application
consummated
for insurance
material in that it
permit
jury to
would
draw the inference that the victim’s
per
might
killing
father
have a motive for
own son
is not
tending
incriminate
con
suasive. Evidence
another
must
suspicion
fined to substantive facts and create more than a mere
*7
person
that such other
committed
v. Rosen
the offense. State
625,
berg,
621,
credibility
Defendant that testimony to the and offer proof sufficiently complete were not or timely. 165, Bales, Iowa 162, 102 N.W.2d approval quotes with from 22 C. quoted J. S. The statement only appears slight now change in 22A J. S., C. Criminal Law, 740, section as follows: injured person dead, crime,
“The whether alive or in party is no prosecution, sense a to the therefore, as a general rule, his statements and declarations are not evidence accused, against or they either for unless are relevant on the question guilt of accused’s and were made in presence, or * ** they part unless are admissible as of the gestae res or * * *. perhaps testimony as threats Such generally is inadmis- hearsay.” sible as page Bales on Reports Iowa says: also
“The rule is well jurisdiction that, established this objection although an insufficient interposed, is if the court the same and sustains there was fact good and sufficient objection reception evidence, there is no reversible 46, Smith, 245 In re Will of 38, error. N.W.2d Crissick, 174 Iowa In re cited therein. Will and cases stating ably to as 156 N.W. often referred * * * it fact, objectionable is, ‘If rule, it was said: matter or objection specific, more that was not does not matter that * * * court sustains an interposed. But, none was where doing, grounds for so are, fact, good objection, and there full good reasons or reasons no reversal there will be because ” presented were not below.’ for answers may not wait argues litigant Defendant that a objection, and responsive questions asked without are which unsatisfactory, from the then, have it stricken if the answer does not follow arguendo, the law Assuming, record. incumbering idly by permit court sit that a trial must hearsay immaterial the record with matter is stricken. error when such there is reversible counsel adverse The contentious reaction defendant’s presence followed, jury, by an ratings outside the colloquy; illustrated what was obvious a rhubarb. It acrimonious eye eye did not see The Court and counsel and inevitable. court, testimony. fact that the trial admissibility on the camera, regard probative for the value expressed a low no against reacted restraint testimony counsel and that some reversal. ground for Charles E. Hosier. as a witness
III. Defendant called hospital because of an called to the had been The witness *8 waiting room he saw a Mrs. In the his brother. to accident Skultety, daughter Constance, Leanna Mrs. McManigal, her Daly, lady might have been Mrs. He Skultety and another who McManigal Mrs. but not Skultety talking to did saw Leanna repeated He time. then statements anything said at that hear McManigal. Skultety by Leanna allegedly him Mrs. made to away. She was seated some distance conversation. was not being nothing quoted. There is she Avas that There is no claim heard what was said. possibility that she even but Mrs, McManigal, testified: referring Hosier, to Mr. heard, you you that Now, repeat the conversation
“Q. will being, that them said, ‘Isn’t this terrible A. She that time? at were, they explained on to me that went tell brothers,’ then she they boys they drinking, were had how nice but been and she said, going awfully family.’ ‘It is hard on the to
“Q. And, you can A. that about all that remember? Yes, explanation to sir, going outside of her about their school good boys.” being such testimony objected was to and stricken. There later was no error. MeManigal
Mrs. was not called as a trial. witness at the no quoting anyone There is claim that she was and her comments under the part circumstances were neither a gestae of the res nor connected with anything part gestae. to be of the res shown merely expressing She was her tragedy. own reaction to a Mr. testimony MeManigal Hosier’s as to may what Mrs. have said irrelevant trial, was to the on hearsay, any issues not within exception clearly to the hearsay rule within the trial court’s power discretionary of exclusion.
IV. urges Defendant objec- error in the admission over testimony police tions of the concerning alleged con- officers versations with defendant while custody under arrest and in failing gi*ant to admitting mistrial after such testi- mony. Simmons,
Allen police Des assigned Moines officer to the Bureau, Detective went Ottumwa with two other officers custody. June to take defendant into The officer testi- fied as to a conversation with returning defendant while Des Moines and as his investigations. own The officer did not any relate incriminating admissions quote defendant. didHe “ ” saying defendant ‘I did referring shoot at her’ Skultety. Leanna "Witness then asked, you any “Did have other conversation with him that you answered, can recall?” He “In response to his that, statement that, after he did not any wish discuss the matter further until he talked to an attorney, I told him legal that was his right, didn’t any questions.” have to answer no
There is claim police gave State that officers ever any formal notice of rights under the Constitution United States or the Constitution of Iowa. arrest his defendant’s Upon father, very properly, hur- *9 to aid. ried his Father together county and son at the counseled jail before the conversations officers defendant with to which objects. “I I with him. testified, Defendant’s father talked things asked him in general up about what was and wondered I advised him I attorney, not to talk an also without him to boys they you told watch try these will trick into some admission.” thus a situation defendant We have where by father; warned was his “any refused to discuss matter further until attorney”; by he talked to an and was told officer police “that any questions.” he didn’t have to answer graduate University, Defendant of the State elected to honorary fraternity Phi Kappa, Beta member of the uni- versity debating president University team, of the Forensics Sigma speech Association and Kho, honorary fraternity. Delta background, With this warning, and awareness would be most surrepti- naive to conclude that defendant was tiously superior intelligence tricked into admissions police officers. rights. Defendant His was aware of state- presumed voluntary. Kelley, ments are be State v. 115 N.W.2d Limke, police officer,
Gerald concerning testified a conver- city sation jail quote at the on June 11. We from the record:
“Q. you Can tell us some remarks that the defendant you? made to A. We shooting Daly. talked of the I Mr. asked him if Daly’s he felt any Mr. remorse about death. “Q. What answer did he make to that remark ? A. He an- ” ‘People
swered Daly like either should belong be dead or dead.’
That may ques one accused of crime refuse answer tions and that he entitled firmly aid of counsel is so ingrained in Amendment, our law toas 5th axiomatic. 6th Amendment Amendment, and 14th Constitution of the United I, States. Article sections 9 Constitution State of Iowa. by illegal Evidence obtained search and seizure is not Mapp Ohio, admissible. U. S. 6 L. 81 S. Ct. Ed.2d 1081. obtained or duress is
Evidence statements force but “The sole state test this the admissi- admissible *10 1192 is; Were or confessions inculpatory of statements
bility
155,
279
163,
Beltz,
Iowa
or
State v.
voluntary
not!”
same
640, 644,
Mikesh, 227 Iowa
State v.
386, 390. See also
NW.
statements,
argue that the
does not
Defendant
Error claimed and based right to rights or his of advised his constitutional was never argues is defendant premise from which silent. The remain rights knew of legally. Defendant factually and unsound to didn’t have answer told “that he He was and asserted them. supra. IY, any questions.” Division See rights pre is not In Iowa advice as constitutional of inculpatory admissions. requisite admissibility pages 162 and 163 Beltz, supra, on Iowa State Beports, it is said: requiring police of Iowa
“We have no statute in by custody statements persons warn that all made officers in the of a prosecution trial case. them will be available statute, duty is no Ordinarily there in the absence such part law-enforcing prisoners, to so caution and on the officers cautioning or or without such statements confessions made warning are evidence.” admissible 179, 182,
In State v. Iowa N.W.2d Marcus, it is said: objections
“Complaint overruling ques- made of propounded concerning statements and police ad- tions officers police missions of called to station. defendant when first voluntary. appear The been Defendant statements to have they points might out be used or warned cautioned against him. This not make them inadmissible.” would Benson, 300 N.W. also State v.
See Cameron, 117 N.W.2d vigorously V. attacks the Court’s instruction on Defendant given. It has alibi the Iowa which it was been rule under in, with well given the instruction admitted accord established Iowa law. as follows: Court instructed the time
“It the claim the defendant that at Daly shooting of to herein he high- Michael referred was on the Knoxville, way Iowa, consequently between Des Moines and that he charged could not have committed offense herein or included He either offenses. seeks to establish this claim witness witnesses who have testified herein and testimony. commonly also his own This defense is known as an alibi.
“The has the of establishing burden this defense *11 by greater weight the bearing of upon it, the evidence and be- you acquit by the fore can reason defendant of this defense you by must find he has preponderance established or greater weight bearing upon of the evidence it. If has es- he by greater weight tablished the of the evidence that he was on highway Knoxville, the between Des Iowa, Moines and at such Des a distance from Moines that he could not have committed charged herein, you the crime of should return a verdict not guilty.
“If the defendant has failed establish this to defense greater weight you should evidence still consider the which support thereof, been has introduced and considering if, after whole, including the case as as a made this you evidence, having doubt to entertain reasonable as com- charged mitted the offense or either of the included offenses you herein, return finding should a verdict the not defendant guilty.
“You will proof understand that the burden of re paragraph to in upon only ferred this rests the defendant as to proof the was on highway the between Des Moines Iowa, Knoxville, shooting at the time the occurred and at such a from per distance Des Moines that he not could have been the shooting. By resting who did the of son reason this burden upon him, required bound prove he is not to his innocence as case, the for upon to whole the burden rests proof of prove beyond guilty the ease as a whole to the defendant guilty a reasonable before of on any doubt a verdict charges against included herein can be returned him.” long recognized been the de
It has the law that easily Blunt, of alibi is one manufactured. State v. fense 327, 33 N.W. 427; Bowland, 72 Iowa 468, N.W. 253; State v. 305, 309, 174 N.W. 137; Leete, 187 Iowa State v. Johnson, N.W. N.W. be manufactured with which an alibi defense can
The ease un- safeguards an proper enable would the absence scrupulous prosecution almost defendant overwhelm caught not the commis- every case where protect society against such sion the offense. order surprise testimony legislature our enacted easily manufactured 777.18, Code of Iowa. This statute in 1941 now section what is pleads guilty and relies provides that where a defendant place was at other at the time an alibi or that he some charged give notice alleged he shall commission of offense setting witnesses, with the ad- together forth names occupation each, the substance of what defend- dress expects prove each. ant required by gave the His
Defendant notice statute. alibi were called and testified. witnesses case
In the trial a criminal a defendant not re though nothing quired anything*. Even he elects to do do prosecution guilt in order to must defendant’s convict establish *12 beyond prosecution a doubt. This burden on the reasonable the throughout never It remains trial as a shield for shifts. required by in the alibi Even absence of the notice defendant. the 777.18, Iowa, may Code of take witness section testify may all and relevant He stand and to material matters. testify specified place far such a away that he was so at present could scene crime. Such not have been at the of the he testimony credibility presents question of for determi thus the by prosecu jury resting burden still on the nation the with the voluntarily go to and call If the defendant elects further tion. testify support give he of his alibi must then witnesses to He required by offers notice statute. He assumes offensive. testify possibly witnesses not have committed to that he could away. goes only to was the offense too far This because place. testimony specific he was at If established some may an absolute the extent that it constitutes defense. To though Even an defense it affirmative absolute nature. affirmatively against pros- it is still defensive not established guilt establishing beyond burden defendant's a rea- ecution’s sonable doubt. jury.
This is what the trial told It is exactly court in strict accord with the law Iowa.
The
of alibi is an
issue
affirmative
when
defense
proof
by
preponderance
asserted
burden
a
of the evi
upon
rests
defendant. State v. Leete, supra;
dence
Worthen,
330;
Rourick,
100 N.W.
State v.
Even defendant did not meet this burden the evi- still dence inured to his benefit as the was instructed it in with consider connection the whole case.
The Iowa outlined in law as the trial court’s instruction long well established line of decisions from which there logical been no has deviation. The rule and sound. argues
Defendant thoroughness skill and that an alibi an points is not affirmative defense. He out the distinction insanity between an alibi and or self-defense. Authorities from many jurisdictions are cited. rules of procedure criminal jurisdictions. are, in all the same Our they are rules protection should-be, designed innocent, for the without making guilty impossible. the same time the conviction at disposed are not We deviate from our well established and opinion in our sound rules.
With respect pronouncements all due for the of other courts *13 precedents adhere- to our we own as the sound answer devel- legal our oped premises. from own procedure
Our statutes and rules of are not they Neither well sacred. are immune from attack. It is that should, however, be It from time to time. reviewed they be civil or criminal is whether it be in that lawsuit kept mind a Procedure should Our Rules of essentially for the truth. a search Our rules are to the truth. for and not barricades be vehicles responsibility and are juries in ultimate their proper aids oppressive suppressive. nor neither argues county the assistant at
YI. Defendant in prejudicial closing argu torney guilty of misconduct Excerpts in argument appear from jury. ment to argument counsel said does not record. What defendant’s no In us we find error the court’s appear. the record before argument for the defendant is not before rulings. Where the presumed response argument for the State is us responsive Latham, error. v. If it was not thereto. Thompson, N.W.2d 840. See also State Iowa 519, 520. 117 N.W.2d 1019, 1029, 1030, Case, 75 N.W.2d said: it is arguments for frequently “We have held where the preserved presumed, nothing it will be are not where reply argument contrary appears, legitimate was a * * * argument for response to defendant. [Citations] require granting “Misconduct of counsel does not appears prejudicial it to have been so new trial unless as deprive defendant of a fair trial. [Citations] 1902a, S., Law, pages section 896 to
“24 C. J. Criminal necessarily be ‘A will not reversed because of cause states: contrary, appellate of counsel. On the alleged misconduct against setting strongly inclined aside convictions are courts * * * Misconduct of misconduct of counsel. of counsel because regarded not cause for generally harmless and reversal trial, depriving accused not resulted fair .where has ** miscarriage justice *.’ or in a absolutely per- necessarily “A mean an fair trial does * * * one. fect repeatedly pointed out trial “We have court judge position than we are to whether claimed much better At dis- prejudicial. least considerable of counsel is misconduct *14 passing on such a matter court in is allowed trial cretion clearly unless it its determination not interfere with and we will discretion.” abuse of such a manifest appears there has been agree merit. We do contention without Defendant’s is “ this court has counsel that statement of defendant’s with the past.” in the Counsel’s been little these matters weak-kneed on in weakness his appreciation of perhaps inspired by comment felony cases in defense position. unusual It is not own inevitably except that lead those for counsel to dislike all rules acquittal of to the accused. sustaining sec error
VII. Defendant claims attack; in fail (alibi against tion 777.18 constitutional statute) ing require give information about to State to defendant witnesses permitting certain rebuttal rebuttal evidence and support testify. authority to Defendant cites no direct appear statute position. The Iowa cases decided under the his constitutionality. rather assume than decide its validity in- presumption against No constitutional can be sup- dulged. be called to presumption must Every reasonable Board Re- port the act. Hotel Association v. State gents, 114 N.W.2d and citations. Ed., Evidence, Fifth
The State Criminal cites Underhill’s Volume section as follows: dignified
“While the of alibi is ‘an institution of defense the manufacture age’, that it is conducive to sometimes said evidence, passed statutes known as Alibi and a few states have give provide general the defendant must Acts. These rely alibi, if fails his intention to on an and that notice of may rejected. stat- point do so Such his evidence on no- constitutional, are and it has been held where the utes testimony properly given alibi was not the defendant’s tice added.) (Emphasis excluded.” Reply Argument Brief attacks this
Defendant by judi- unsupported omnibus, as an broad statement citation precedent. cial quoted
We think the statement is sound. requir- about nothing essentially unconstitutional There is testi- pretrial of witnesses whose ing disclosure names .1198 may the other be called on refute.
mony side The modern broaden material facts discovery trend in access reduce belated surprise.
In Iowa the State furnish defendant with names must may of witnesses to in chief and obtain the be called *15 he must re- substance the evidence face. Unless defendant insanity on not the names his lies or alibi he need disclose required and alibi statute. To only witnesses then the may testimony rebut the of defense the State call witnesses testimony additional be limited Their however must witnesses. process \infair due nothing to rebuttal. nor violative We see procedure. of law this Upon
Vlil. motion arraignment filed a to set quash aside and indictment. The motion is ten numbered paragraphs primarily allegation that the but is based on the jury persons grand all were names examined the not before persons on that were indorsed the indictment and unauthorized grand in the jury room.
Many persons grand jury. examined Not were before the of those all examined were listed on indictment. the provides
Section a motion 776.1, Iowa, Code of to set upon aside indictment One of the grounds. can be made several grounds is that before the the names of all witnesses examined grand Subsequent are indorsed on indictment. in chapter provide sections for to an indictment corrections practical of the so attacked or resubmission. effect statute rebuttal) prevent (except is to of witnesses with- calling out notice defendant. 780.10. Section repeatedly We law does not re have held of a name wit quire on an indictment the indorsement appearing grand jury, if, opinion, in their ness before testimony given Only names wit immaterial. was is based need be testimony indictment nesses whose Stafford, Iowa indorsed thereon. v. 1115; 832; 507, 511, 96 Hasty, 121 N.W.
N.W.2d State v. v. Davis, 274; 297 N.W. State Mar 230 Iowa tin, 376, 379, 228 N.W. application for denying
IX. error Defendant claims papers, copies and production of books particulars, bill of jury. testimony grand and before statements for production order examination court did The trial conjunction photographs exhibits used documents, all attached was testimony any witness whose evidence with the police given to the together with statements indictment, to the also author By agreement defendant was Skultety. by Leanna diagram. photographs ized examine motions, the extensive have defendant’s We examined analysis indictment and the trial court’s minutes to the attached no discussion here would serve Detailed ridings thereon. in the sought appears information purpose. Some of the useful things to which defendant nonexistent. The Some is minutes. constituted the motions entitled were furnished. Parts of no expedition.” discloses “fishing Our examination obvious an error. authorities, cites, among other Jencks United
Defendant 1007, L. Ed.2d 1103. States, 77 Ct. 353 U. S. S. *16 our law impact of the Jencks case on significance and 91 Kelly, 1219, 1221, 1222, 249 State v.
is considered quote: 562, N.W.2d 563. We error, motions was defendant denial of these
“The contends chiefly upon States, 353 S. claim v. United U. basing his Jencks Ed.2d 657, 669, 77 Ct. 1 L. 1103. While the defendant’s S. right inspect the first above referred claimed motion process law’, are satis- writings under ‘due we demanded Supreme placed holdings Court has not its the United States fied adopted basis. It a rule of evidence. Gordon upon that has L. States, Ct. S. 73 S. v. United U. applica- question to on an 447, it is said: ‘The be answered Ed. admissibility tradi- produce one under tion for an order to * * Clark, dissenting tional of evidence *.’ Mr. Justice canons n rule of case, ‘This a new Jencks remarked: fashions jurisprudence.’ foreign See which is to our federal is also 77 Ct. Reference S., 680 of 353 1019 of S. page page U. S., pages case, page Gordon 418 of 344 U. made in jurisdictions, opposite followed in some state Ct., rules S. by the federal any are bound intimation that such courts without holdings. In fact, presented picture the entire Jencks and Gordon cases is that under certain conditions and with certain limitations the entitled as a matter of procedural right inspect purpose possible documents for impeachment.
“The significance foregoing discussion lies the fact that if upon process the Jencks case were based the due Constitution, clause Federal suggested by the defend ant, it would binding upon courts; upon state if based procedure rule of evidence or not. As it is we view the matter are not we bound follow case, may the Jencks but determine for ourselves, question directly when the presented, whether will do we so.
“But this required decision is not at this time. Even ruling under Jencks case the of the trial court was correct. requirements The essential produce for an order to documents inspection for are thus necessary stated: ‘The essentials of foundation, emphasized opinion in that States, v. United [Gordon supra], present here, are that “the produc demand was for * # * specific tion of propose any documents and did broad expedition blind fishing among possessed by documents Government on the something chance that might impeaching up. turn Nor was this a demand for statements taken from ’ persons or informants not offered as emphasis witnesses.” The was added court quoting Jencks ease from the Gordon case. See States, Jencks v. supra, United pages S., page 667 of 353 U. 1012 of 77 S. Ct. It also appears that the demand must be for documents shown to be in existence. Gordon States, page United 418 of S., page 344 U. 373 of 73 S. Ct. * # * recognize “We the force of the quoted statement by the *17 * * majority defendant from opinion in the Jencks ease: the interest of the United in prosecution States a criminal “* # -* js not that case, it shall win justice but that shall ’ done.” be This mean, does not however, scales must weighted in favor of the prosecution defendant. The has rights certain respected; which should be equally it is entitled to a fair trial.” second-degree submitting in
X. error Defendant claims Daly shot Michael jury. argues murder to the that whoever He so or guilty first-degree and must be convicted was murder acquitted. only one case
Defendant numerous but cites decisions 195, Bertoch, 112 Iowa support position. in v. of his involved N.W. here for it case little value That is of provision by poison. poison by specific murder Murder is degree. first statute made murder agree shot We with defendant’s counsel whoever convicted Daly might Michael under evidence have been jury might degree. of murder in first record Under the guilty charged. have found defendant as any human statute, 690.1, section kills
Under the whoever express implied, being aforethought, either with malice forth additional essential guilty of murder. Section 690.2 sets murder first which if established would raise the elements is established degree. charge The murder. If murder basic required by question specific statute is whether the elements All been established. degree to raise the offense to first have second-degree except specified in 690.2 murder section Section murder. 690.3. guilty defendant was jury obviously
The was convinced doubt, resolved favor may of murder. There have been some necessary for defendant, elements of the essential as to some jury might have even first-degree conviction of murder. leniency. may degree We not inclined to exercise been some under evidence as any either event interfere event. necessarily degree murder in second shown the record degree. murder in the first charge in the an included offense degree second degree murder the first Murder degrees of They different murder. separate offenses. are are 19 N.W.2d Davis, 236 Iowa follows: and authorities as forth the rules sets Brooks, “In the case of State upon which included 194, 196, we forth the basis
N.W. set jury, and stated: offenses should be submitted “ should be submitted hand, the other offenses ‘On included *18 1202 commission; (2) if, (1) under any
if of their there is evidence guilty” evidence, jury might believe the defendant “the Atherton, (State 50 116, thereof State v. Mitchell, v. 68 Iowa if 500); (3) there 189, Trusty, 498, Iowa 118 Iowa at State v. may the included jury be some from which believe evidence 241, (State at only Vinsant, offense v. 49 Iowa was committed 244, Perkins, Woodworth, State v. v. 2).’ Iowa at
“Conceding offense of holding but not that the included larceny submitted, error, any, should have if not been prejudicial appellant. to the
“In Haugh, the case State 137 N.W. Iowa pertinent we made this statement: “ We have never error prejudicial held that it constitutes crime, though to instruct with reference to an included even under the charged, evidence a conviction for the crime without crime, an instruction been sus- included would have It tained. does not lie to com- mouth the defendant plain that he degree been has convicted a lower crime than that which It the evidence tends establish. is not presumed from fact jury rape that failed to convict they did rape convict of an assault with intent commit finding beyond without from the evidence a reasonable doubt that the guilty defendant was of that crime. If the exer- leniency degree cised undue finding their as to the of the committed, benefit, crime such error has resulted to defendant’s complain. and he enough say that, cannot It is so far as concerned, general sufficiency verdict ” is not ample support.’ without See also Kramer, N.W.2d 18. injected
XI. argued separately Not the argument but into post on included juror offenses are conviction affidavits. One attempts confused, to impeach says the verdict she was regretful. misled She feels the verdict was a com- promise. jurors by deny Nine any confusion, affidavit misunder- standing arriving They their mistake at verdict. comment and freedom from on the fairness of the trial and fairness bias of the court. trial *19 regular part-time from members the
Affidavits seven Affi- against defendant. accuse the court of bias the audience juror the audience davits from and nine others from an alternate commend the fairness of the court.
Nothing appears justify us. that would interference usually present in Curiosity, partisanship drama and audience is publicized felony appear do but case the trial of a case popular or audience by affidavit, not one for decision clamor jury participation. for decision It in the trial court was jury The careful under established and laws. after well rules consideration rendered its verdict. in impeached or avoided
A verdict cannot be jurors they misunder attempted by manner that affidavits influenced the question stood instructions. The what in verdict itself. opinion verdict a matter of which inheres considered, definitely decided and question carefully This 684, 32 Hill, in 239 cited Iowa authorities N.W.2d 398. carefully and
XII. This tried before a selected case was The impartial jury judge experience. years and a trial with intensity by experienced charge vigor and was defended with tactics were and resourceful counsel. All available defensive employed. repeat I. It is for us to
We what we said Division to the pass upon questions properly submitted issuable of fact jury. jury spoken. has error. find no reversible
We have reviewed the record and The ease is—Affirmed. JJ., J.,C. Thompson, Stuart,
Garfield, Peterson concur. Hays JJ., dissent.
Thornton, Larson, J., Moore, part. no takes I unable to (dissenting) Finding J. am
Thornton, — 1204
agree opinion, respectfully I majority Division V of the dissent.
My point No. set out of dissent that Instruction proof burden of of a majority opinion, places full defendant, depriving defensive on thus the defendant fact the State presumption and relieves innocence a reasonable proving chai’ged beyond burden of the offense doubt; confusing and that the instruction is and inconsistent. question
The last time
was
this court examined this
Hamilton,
in State v.
The view Adams in the Hamilton case Justice country. majority now has become the view in this The defend- 1206 Courts2, and text states1, the Federal
ant eases from 32 cites does not contend the supporting view. The State this writers3 minority given other view. than instruction majority relied on An of the cases examination believe, I reveals, the mistaken Hamilton opinion case by this court. view taken 753, 578, Am. Dec. 570, 24 95 Vincent, v. State said:
it is
of Clai-
in life
prisoner, and the existence
alibi
“The
murder,
alleged
at the time of the
born Showers
deceased]
[the
totally
independent propositions
inconsistent
are each
each
proof of
prisoner.
the burden of
It is evident
guilt of the
prima
evidence
against
upon
prisoner,
neither,
for
rests
facie
prosecution,
proposition of the
corresponding inconsistent
of its
sustained
presumed.
defenses, then, must be
These
will be
either
necessary to sustain
prisoner, and
tending
estab-
outweigh
proof
sufficient to
them must be
are cited.
contradictory hypothesis.” No authorities
lish its
guilt, but
is inconsistent with
be denied the alibi
It cannot
P.
La.
Kan.
State,
Gist,
Neb.
N.E.
[26]
Ardoin,
Marvill,
347;
State
374,
[11]
597;
[5]
State
State
[173]
S.W.
State
S.E.2d
S. C.
307,
State,
Ariz.
256;
Ohio
App.
63,
Footnote
P.
[28]
188,
[174]
65;
[110]
253;
State
v.
v.
v.
31,
Smith
v.
305,
[182]
[91]
716;
239,
497;
Armstead,
McClellan,
[49]
Ilorwitz,
[236]
Cal.
Territory
Milosevich,
139 So.
App.
Div.
State
[23]
S.E.
S.E.
Tex.
280 N.W.
Wis. 515,
[132]
v.
La.
v.
App.2d
[52]
Mich.
State
P.2d
State
Mucci,
1.
2d
53,
105;
698;
v.
Cr.
State,
S.E.
Ann.
P.
v.
759;
108 Conn.
Foye,
Ragland
679,
283 S.W.2d
[159]
475;
[23]
v.
Whitely, 100
595,
Rep.
352;
v.
119 Ore.
847,
1207 (I do not find the term independent proposition. not an it is McCumber, 1927 State v. used until “affirmative defense” Where, here, necessary it is 137.) 202 Iowa N.W. present the to commit the prove the defendant for is, present the defendant was the for the State crime, evidence question. evidence alibi place in Defendant’s at the time and question at simply place not at the but another is that he was him the for to have been at site naming it, too remote place, purely defensive. The Defendant’s evidence of the crime. is, there, any proved by be the State was fact defendant negates he was not there that evidence. that shows evidence of witness, same of the evidence is the The effect “I present crime, testifies, did actually at the scene of the who immediately I the there the time. drove a see defendant at not working and saw defendant in a field.” mile down the road the testimony is Certainly sentence of the witness’ not an the first independent proposition or The an affirmative defense. same second, merely explains confirms of the it should true the first. quoted Vincent,
The second sentence above from State inconsistency sequitur. Why supra, is a combination of non prisoner? proof it evident the burden alibi rests on the other quoted all matters State. From the sentence On the answer, presumed find this it will not be defendant we the was present offered when the has evidence that was. opinion this From the holds the defendant has the burden of opinion (and When in the proof. instruction case at bar) nonpresence pre- states not be defendant will him, sumed, presumption innocence has been denied proving beyond relieved of its case State has been reason- doubt. in the and this one Vincent ease able present charged. to be to commit crime as had Rep. 26 Am. Henry, Hardin and State v. following quotation Webster, is the from Commonwealth 1850): Am. Cushing 295, (Mass. Dec. “ alibi, ‘In ordinary party charged case of an when a prove place attempts to was in another at with a crime that he tending prove time, that he committed all the prove degree the offense that he at tends same *23 therefore, place If, proof when it the was committed. the of outweigh proof place alibi does not the that he at the when ” offense was committed, the it is not sufficient.’ opinion simply then recognized states this doctrine was approved in 24 In Vincent, State v. Iowa 570. the Webster case, supra, alibi is called an affirmative fact.
It should be noted in opinion in the v. State Hardin and Henry, supra, Day pointed Justice out the rule page true at 46 Iowa, 629 of as follows:
“For, if a presence reasonable doubt be created of the of accused place the at the time and of the commission of an offense which could not commit when absent, a doubt reasonable guilt; raised as to his and a reasonable the guilt, doubt all hold, authorities acquittal.” entitles accused to an In Northrup, State v. 583, 587, 408, 48 Rep. Iowa 30 Am. we said: that,
“The were instructed to maintain the defense alibi burden defendants, was on they only but that were required prove it preponderance This evidence. inis accord with The State v. Vincent, Iowa, 24 said
“It is there unanimity is a want of in the authorities question, on this and there are among differences the members of the court in relation thereto. The v. Hardin al., State et 46 Iowa, 623. But majority rulings the court adhere to the made, heretofore under the belief weight that the decided authority is in accord therewith.” v. Red, 69, 71, State 831, N.W. this court
again Vincent, cites the Hardin and Northrup approval eases placing the burden proof of alibi on the defendant. At page of 53 paragraph Iowa is a attempting justify instruction it abrogate does not the doctrine of reason- able doubt. No attempt explain is made inconsistency pointed out Justice Adams his dissent in the Hamilton case.
To the Kline, same effect is 183, 185, Iowa 6 N.W. 184.
The cases above examined are entire basis for the rejection five-line of the views of Justice Adams the Hamilton on, was based majority It is submitted that view case. Northrup, 48 thought majority view, State v. this was the independent Rep. 408; 2, alibi was an Am. con defense; 3, long as the instructions affirmative that so guilt proved must be tained the statement the defendant’s beyond a if doubt arises from reasonable doubt and a reasonable acquittal, to an all evidence or a thereof he is entitled lack done; might no harm is an alibi be fabricated because ease, assump type whether warranted such not, tion or guarded all cost. should be at Since the I not find a where we have Hamilton case do case re-examined the instruction. alibi See discussion Wagner, *24 227-232, 407, 207 222 61 A. L. R. 224, Iowa N.W.
bearing on whether the evidence raised the defense alibi. page may At 229 of pointed 207 Iowa it out the defendant prove “affirmatively” impossible have it was that he could been present and him, citing when on he does the burden is the same supra. authorities as in Hamilton, State v.
In 137, State 212 McCumber, 1382, 1384, v. 202 Iowa N.W. opinion alibi is called an did deal affirmative defense. The not right with this instruction but to use the of the State rebuttal testimony.
In 8, Johnson, 596, State v. 221 264 N.W. find 20, Iowa we the instruction approved, defense, alibi is called an affirmative sequitur, go and the non did not that the instructions as far such rightfully may go cautionary in that a instruction was given. not
In Dunne, 1185, 1191, 296, State v. 234 Iowa 15 N.W.2d 300, 299, approved we a similar instruction these words:
“Instruction 11 told that defendant claimed an the In language approved, alibi. which has been the instruction recognize easily states that courts defense as one that can be manufactured; support evidence in should thereof be scanned caution; prove with the burden to- a preponder- the defense upon if, ance of defendant, upon evidence rests but that case, question including- alibi, whole the evidence on the there guilt, acquittal. was a reasonable doubt as to should be an there 20, 596, v. Johnson, 8, State 221 Iowa 264 N.W. N.W. See 267 1210 224, 230, cited; Iowa
91, Wagner, and cases 1206; annota 764, section 407, 882; 61 A. L. R. 23 C. J. S. N.W. A. L. R. 471.” 126; 67 A. L. R. tions 319, 323, 60 N.W.2d In Rourick, State v. notice admissibility dealing of evidence where with the 777.18, Code of given, section properly testimony is not alibi 1950; Iowa, we find statements: these essentially an alibi is proposition “We that start * * * technically so classifiable defense. Whether affirmative we need not determine here. [*] * * notice required section required it is special plea is in 777.18 the nature of a can raised.” special alibi before the issue or defense of Baker, N.W.2d in the absence instruction discussing* necessity for an accidental, request shooting defense was the claimed said: we “* * # defense, Strictly speaking, the claim of alibi is those since, many particularly prosecution of crimes presence violence, burden the State to establish is on precise time at the place of the accused at the crime by many many years and perpetrated, but for was court this alibi, in the sense of decisions has held a defense participation in being place at a the crime so distant that such so- impossible, the burden on the accused establish *25 (Citing the preponderance of evidence.” called defense a cases) recognizes
In the this court last above two cases cited notice of of defense. The evidence alibi not an affirmative Iowa, 1962, required 777.18, Code of testimony by section alibi plea. the not a or new Eourick does create new defense a * * * * “# * notice is in the states, Smith case Justice the required special of the special plea a in that it is nature before or be than issue defense of alibi can raised.” He was more hesitant to call of alibi an affirmative defense. evidence majority carefully opinion
I have to find a examined the statement, or the “The issue of is an affirm reason for alibi basis * * Rourick, given, *.” in fact None is ative defense support supra, of it. cited the commission
The not avoid defendant does confess his from charged by offering of absence the offense evidence of by showing explaining absence scene of the crime time. It not doing he was he was at that does where and what by someone, but admitting crime was committed amount plea of merely denies the crime. Under that he committed denies guilty any to offer evidence that defendant is entitled not just he charge not there does made. When he shows he was that. pointed
That the is inconsistent is well out instruction Iowa, 599 of page Hamilton Justice Adams case at in the N.W., page of words: these jury a case suppose
“No can follow both. Let us where preponderate, of an not but does raise a alibi does If guilt. they do? follow reasonable doubt of What shall preponderate must the instruction the evidence of an alibi they disobey as to must the instruction reasonable convict and hand, they the instruction as to doubt. On the if follow other acquit disobey the instruction they doubt reasonable must * * to the evidence of an alibi. *.” readily fact, may If manufac- evidence of an alibi tured, proving for placing was ever the burden a reason defendant, that by preponderance evidence on the alibi 777.18, Iowa, Code of reason has now to exist. Section ceased Assembly 1962, adopted Forty-ninth by General requires purpose of his a written notice to file days four to introduce than before testimony, alibi later occupation the wit- trial, setting name, address and forth the expects call, and a substance nesses statement purpose expects The prove by what he each witness.
Act, Assembly, is, “An chapter Forty-ninth General Act insanity provide for notice the defenses advance in criminal alibi cases.”
Compliance ample gives section an 777.18 investigate testimony. The opportunity manufactured alibi opinion majority this. concedes Hamilton, expressed in State v. belief *26 587,
598, 6, Northrup, 583, 11 v. 48 5, N.W. and State 1212 Rep.
30 Am. 408, weight authority that decided iu accord with expressed longer view is no true.
Defendant has cited cases from 32 the Federal states Courts unnecessary that sustain position. his It and im- practical quote from all them. It is to illustrate sufficient quote the true rule to four of from the later cases. People 252, v. Pearson, 609, 19 Ill.2d N.E.2d 614,
255, Justice says: Schaefer proof
“Logically, proof alibi is of an an affirmative prosecution defense because in order establish its case present must show that the of the defendant was at scene crime, only and evidence that the defendant was elsewhere is one prosecution’s method where in negativing So an case. struction has unequivocally placed upon the burden a defendant establishing Hoge an alibi, the conviction reversed. has been People, Lacey, Ill. 796]; People N.E. [6 Ill. N.E. [171 544]. say
“To upon the defendant establish burden an alibi can be only accurate if the is used term ‘burden’ requirement sense of the going forward with evidence. But if that is intended, any all that is in an instruction reference upon to a burden improper the defendant is because is never necessary or appropriate jury to- mention to the burden of going Quite forward with from apart the evidence. the matter of instructions to jury, speak to think or of alibi terms of an affirmative only defense The ease can cause confusion. with which alibi testimony and its fabricated, can obvious capacity surprise, may appropriate to- make some advance notice defense, but that different is a matter.” Bonomo,
Commonwealth v. 396 Pa. 151 A.2d 446: “* # [*] There no- point saying must satisfy minds of their his innocence followed a statement that he satisfy does not have to their minds but * * * only pause guilt. need cause them to or hesitate his as to every The Commonwealth proving has burden of essential necessary element for conviction. If the defendant traverses alibi, essential one those elements evidence of
1213 jury along with all the other by be considered the evidence. will together evidence, or with other may, standing It either alone jury in the minds of the a reasonable be sufficient leave doubt might exist.” which, it, without not otherwise (Del. 1961) State, Halko v. 175 A.2d : clearly “But think it It is bottomed the upon we erroneous. theory defense’, an alibi is an ‘affirmative similar to self- insanity jeopardy. defense or or former is An This incorrect. doing of affirmative defense one that admits the the act charged, justify, excuse, mitigate it; or, but seeks to inas jeopardy, arising former invoke a bar out of the facts dehors the record. “ * # * not, properly ‘The defense of alibi speaking, any meaning defense within accurate of the word “defense” is a but mere fact shown rebuttal of the evidence introduced by the State.’ Criminal Wharton’s Law § only any
“Since an alibi is a denial of connection with the crime, proof it must if follow that the adduced raises a reason- doubt of defendant’s guilt, conjunction able either itself or in all other case, acquitted. facts the the defendant must be Law, citing* every Wharton’s Criminal nearly cases from § in the state Union.” Barrasso,
United States v. 908, 910, (3d 267 F.2d Cir. quotes 1959), with approval following from United States Marcus, 166 ( 1948): F.2d 504 3d Cir. “ ‘By weight authority it is held that the instructions presumption on the of innocence of accused, and of the necessity fastening every necessary element the crime charged upon beyond the accused doubt, a reasonable are enough in involving necessary presence cases of the accused particular aat and place, produces time when the accused testi- mony that elsewhere request he was at the time. If the accused proof an instruction to the alibi, as burden of on his an instruc- subject given tion on the acquaint must be so as to government’s with the law that the proof burden of covers the ” alibi, defense of phases as well as other all of the case.’ In Wigmore’s (Third Ed.) Code of Evidence burden way: stated this Acts. In criminal as to the
“Art. 15. Criminal all issues charged, doing of the act prosecution; jury-doubt is on
“(1) risk “(2) duty passing judge does not shift to the * * * any presumption law; except as follows: in Par. (b). Alibi, (c). “Par. violence; (c). Self-defense, charge corporal
“Par. *28 prosecution, jury-doubt risk of remains on the here the but judge on duty passing the defendant.” only duty claiming clear the on a It seems alibi go forward with evidence to raise the issue. He has no tois proof, that is on State. burden expressed by case, view Justice Adams The Hamilton majority N.W. is now the law a recognized by good the text states as well as writers. No- reason change appears why we should an erroneous view. Mark quoted “Loyalty petrified saying, opinion Twain is to a never freed a yet certainly broke a chain or human soul.” This court no loyalty view, long no to a mistaken matter how has such has fact, opinions our do actually not indicate we stood. have in alibi the instructions cases with the now considered matters opinion. in mind since the Hamilton considered strength of pride willingness this has court been its majority any subject adopt view on of law and to examine sound. That the same where should be done this case. I would this case for a new trial reverse so trial court opportunity instruct will have the the issue conformity expressed alibi with the views herein. JJ., join in this dissent.
Hats Larson,