— On September 25, 1961, the defendant was placed on trial in the Warren District Court to answer a charge of perjury lodged against him by county attorney’s information. The jury returned its verdict of guilty as charged, and on October 16 next the court entered its judgment on the verdict and sentenced the defendant as provided by statute. He appeals, assigning nine errors.
I. The first three errors are related, and we shall consider each of them in this division. The first asserts that there was error in admitting into evidence the testimony of S. E. Prall, who was the presiding Judge in an earlier civil action, Martin v. Thompson, in which the charged perjury of the defendant was alleged to have been committed. This action was a suit on a promissory note, and a check, known in this record as State’s Exhibit 2, was introduced in evidence. The check, drawn by the defendant, which was in the amount of $500, bore in writing the notation “For one yearling stud colt and mare”; and it was the contention of the defendant here, who was also a defendant in the suit on the note, that it was given to apply on the note; while the plaintiff in that suit denied it was such payment. There was evidence in the civil suit, and also in the case at bar, that the words “and mare” were not on the check at the time it was given to the payee and by him deposited in the bank. The defendant testified in the suit on the note that the words were on the check when it was delivered to the payee. This is the fighting point in the case; and since the question of the materiality of the testimony of the defendant in the first case is not raised here, we shall not further state the facts.
It is the defendant’s contention as to the first assigned error that Judge Prall should not have been permitted to testify as to the nature of the civil proceeding at which he presided, and further should not have been allowed to state his opinion that the question of the words on the check above referred to was a material issue in that case.
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Here the second assignment of error becomes material. It is that the record in the civil case, consisting of the pleadings, rulings of the court, and its instructions — the court file in the case, in fact — should not have been admitted in evidence, and Judge Prall should not have been permitted to use it in testifying and to explain its contents to the jury. The record of the preceding case was proper. State v. Mutch,
The third assigned error is that the court should not have admitted the testimony of Harry Nelson, the court reporter, who reported the evidence in the civil trial. The reporter read from his shorthand notes that part of the testimony of the defendant, Thompson, given in the first suit, which pertained to the check Exhibit 2 and the notation written on it. This showed that the defendant testified strongly that the words “and mare” were on the cheek when it was delivered to the payee. The error claimed is that Nelson was permitted to read only portions of the transcript, which were fragmentary and incomplete, and quoted the defendant out of context. It is well established that the false statements of the defendant in a perjury action may be shown by the court reporter who took the testimony. 41 Am. Jur., Perjury, section 61, page 34; Underhill's Criminal Evidence, Volume 3, section 822, pages 1852, 1853; 70 C. J. S., Perjury, section 58, page 529. In the latter authority it is said: “* * * such portions of the record as are necessary to show what the false testimony was may be read by the court reporter.”
The complaint that only portions of the testimony were introduced is answered by reference to the record, which in connection with the testimony of the witness Nelson shows this from defendant’s counsel: “We move to strike, Your Honor, all of the testimony from this witness which did not refer to Exhibit C [this being the designation of the cheek Exhibit 2 in the civil suit] for the reason that the same is prejudicial to the defendant, *336 has no probative value, and not among the proper methods of proof of the elements of the charge.” The court sustained this motion. In conformity to this ruling, the court then requested the county attorney to refrain from questioning the witness on matters not relevant to the check.
So the defendant himself objected to other portions of the transcript which had no bearing on the alleged false testimony. He cannot now complain that the entire transcript was not offered; and indeed it seems evident that it was only that part dealing with testimony of the defendant as to the check in question that was material to the issues in the instant case.
We return to the first assigned error. As we understand it, here the defendant claims Judge Prall should not have been permitted to testify as to the nature of the civil proceeding or to express his opinion that the question of the writing on the check was a material issue therein. The defendant cites three authorities : State v. Brown,
We quote from 24B C. J. S., Oriminal Law, section 1915 (15), pages 104, 105: “Error in the admission of opinion evidence may be regarded as harmless * * * as where the opinion * * * relates to a fact which is not in dispute, or is manifest.” The trial court here instructed the jury that the testimony given by the defendant as a witness in the former trial was material evidence. In fact, the record of the civil trial shows that Judge Prall considered the issue to be a material one therein. His opinion testimony in the case at bar added little if anything to what was shown by the record in the first case, which we have held was properly admitted in evidence. Viewing the question as a matter of law, as it was the duty of the trial court to- do, the materiality of the testimony given in the civil ease is manifest and was not in dispute. No error appears at this point.
II. At the adjournment of the trial on the second day the court did not admonish the jury as required by sections 780.21 and 780.22 of the Code. This coming to the court’s attention shortly, an attempt was made to reconvene the jury for that purpose; but only ten jurors appeared. These were duly admonished; but the defendant thinks reversible error appears. We do not agree. A proper admonition had been given at adjournment following the first day of the trial, and evidently at least once before that, since the admonition then given reminded them of a previous one. The defendant called the court’s attention to the absence of the two jurors, but made no motion for mistrial and no objection to the procedure adopted. We discussed a similar situation in State v. Jensen,
III. Error is predicated on the failure of the trial court to strike a statement read from the record of evidence in the civil trial by the reporter Nelson, to the effect that the defendant had given the plaintiff in that ease, Martin, a check which “bounced”. It is argued here that this “obviously is evidence of what might be construed as a crime, namely the issuance or utterance of a false check which is a felony in the State of Iowa.” Authorities holding that other offenses may not be shown in a trial of one accused of a crime are cited.
We need only point out that this contention was not made in the trial court. The objection to' the testimony was “We object to this * * * for the reason that the testimony being read is prejudicial, and for the further reason that it is incompetent, irrelevant and immaterial and has no' probative value; none of the testimony presently being read goes to the issues on trial before this jury.” This objection was made after the testimony was already in the record. Then came the motion to strike: “We move to strike * * * all of the testimony from this witness which did not refer to Exhibit C for the reason that the same is prejudicial to the defendant, has no probative value, and not among the proper methods of proof of the elements of the charge. The same is prejudicial to the defendant.”
Objections to testimony already given come too late and in any event they did not raise the specific point now relied upon. The objection “incompetent, irrelevant and immaterial” is generally insufficient to point out specific grounds to the court, and the same is true of the statement “it has no probative value” so' far that it does not specifically designate the objections to the incompetency of the evidence because it tends to show the commission of another crime is concerned. Ferris v. Riley,
Nor do we think the mere fact that a check “bounced” in itself shows the commission of a criminal offense. There are many circumstances under which the nonpayment of a check for lack of sufficient funds does not make the drawer guilty of a criminal offense; as where it is not given for a present consideration. We find no error at this point.
IV. Continuing, the defendant asserts error was committed in the admission of Exhibit S-3, an enlarged photostatic copy of a microfilm of the $500 check, Exhibit S-2, which as offered contained the disputed notation “and mare”. It is urged the photograph was not the best evidence. Donald J. Tew, cashier of the South Des Moines National Bank, of Des Moines, testified that Exhibit 2 was drawn on that bank, and was paid and charged to the defendant’s account on August 23, 1960. He said that such checks are microfilmed at the bank in the ordinary course of its business, and that he had examined the microfilm of the check in question and that Exhibit S-3 was a photostatic copy of the microfilm. He further testified that Exhibit S-3 is not the same as Exhibit S-2 because the check when it came into and was paid by the bank did not have the words “and mare” written on it. This is shown by the photostatic copy, Exhibit S-3.
Duane L. Barton, an examiner of questioned documents for the Iowa Bureau of Criminal Investigation, testified that he made the photographic enlargement of the microfilm testified to by the witness Tew, and admitted into the record as Exhibit S-3, and that it is a photostatic copy of the microfilm as shown by records of the bank. It was his opinion that all the writing on the check S-2 was made by the same individual.
Section 528A.3 of the Code provides for admissibility in evidence : “Any writing or record, or a photostatic or photographic reproduction thereof, of any bank whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of said act, transaction, occurrence or event, if made in the regular course of business.” This seems to answer fully the defendant’s argument. The question was discussed and
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decided in United States v. Manton, C. C. A., 2d Cir.,
There is also an interesting discussion of the “best evidence” rule, upon which the defendant relies in the case at bar. It is said: “And if it appear, as it does here, that what is called the secondary evidence is clearly equal in probative value to what is called the primary proof, and that fraud or imposition, reasonably, is not to be feared, the reason upon which the best evidence rule rests ceases * * *.”
The defendant complains that the photograph is not a true representation, because it is enlarged. It is often the practice of expert examiners of documents to enlarge photographs of them, for the purpose of closer study and pointing out their salient characteristics. We see no material difference between a photostatic copy, exact size, and an enlargement. The point is, is it a true photograph ? Does it show exactly what is on the microfilm ? There is no complaint or evidence that it does not in this case. It is understandable that the defendant is not happy with the evidence of this mechanical informer, or that he thinks it was highly prejudicial to him; but we find no reason for saying it was erroneously so. Indeed, it seems proper and highly convincing evidence. The assigned error is not well taken.
Y. The defendant contends that the State failed to show by the proper quantum of proof the falsity of the statement testified to by the defendant upon the civil trial. He cites State v. Wood, 17 Iowia 18; State v. Clough,
It is an inescapable conclusion that falsity was strongly shown. There was competent evidence that the question whether *341 the words “and mare” were written upon the check at the time it was delivered by the defendant to the payee Martin was a material one in the civil case. There is evidence the defendant testified under oath in that ease that the words were in fact on the check when it was delivered. There is evidence in the case at bar that such testimony was false, because the photograph of the cheek as it came to the drawee bank and was there paid does not show the words.
We said in State v. Clough, supra, loc. cit.
So with the claim that there was a lack of proof that the false testimony was wilfully given. As we have pointed out, there was evidence the words were written on the check after it had been delivered and paid at the bank; that is to say, after it was returned, canceled, to the defendant. There is also evidence that the disputed words were in the same handwriting as the remainder of the check, which means that of the defendant. It is difficult to believe, if the words were placed on the check after it was returned to him, that he did not wilfully testify to the contrary. The circumstances clearly justified the submission of the issue to the jury.
VI. Further complaint is made and error assigned upon the conduct of the county attorney in argument. It is urged that his reference to the failure of the defendant to present character witnesses was prejudicial and resulted in denial of a fair trial. The abstract of record, as amended, shows that in his closing argument the county attorney said: “Now if I were speaking of additional witnesses, I want to make this additional comment: Dolan Thompson is here. He was the only witness *342 who testified on his behalf. He has no witnesses who testified, who testified for him in matters of character.”
At this point defendant’s counsel objected that the argument went beyond the record, and was prejudicial to defendant. The court denied the objection, saying “It is rebuttal”. However, after further colloquy, the court advised the county attorney he had “pursued that far enough” and apparently nothing further was said about character witnesses.
The arguments of defendant’s counsel were not reported, and so we have no way of knowing, except from the remark of the court “It is rebuttal”, whether the county attorney’s argument was in response to something said by them. The statement of the court tends to indicate that it was. State v. Rutledge,
VII. Although the defendant assigned error upon the refusal of the trial court to grant a continuance, the point is not argued. However, we have considered it, and have studied the entire record in the case in accordance with. Code section 793.18, and conclude the defendant had a fair trial in all respects.— Affirmed.