State v. Cotton

I am unable to agree with the conclusions reached in the majority opinion and therefore dissent. In filing this dissent I feel that I can thus give expression to my conception of the province and duty of this court in dealing with questions presented in the majority opinion.

I. It is the holding of the majority opinion that there was error committed in the admission in evidence of numerous claims, invoices and requisitions in that it is asserted there was no evidence of their falsity. I have no quarrel with the rules of law set out in portions of Division I of the majority opinion. My objection is to their application. There is no question that evidence is admissible as to other claimed crimes where there is a showing in the testimony and evidence concerning these claimed crimes of a similarity between the offense charged and the similar claimed offenses.

In giving consideration to the objection to the reception of the offer of Exhibits 35 to 56 inclusive and Exhibits 58, 62 and 63 it is well to keep in mind what is shown by these various exhibits. An examination of them discloses that these claims filed by Croft cover the claimed furnishing of a large number of tires, automobile accessories and parts and also mechanical services rendered in connection with the cars operated by the Welfare Department. The trial court in ruling upon the admissibility of the exhibits stated that they were being admitted solely as bearing on the question as to their falsity and the intent to defraud on the part of Croft and also on the part of the appellant. The court stated that these exhibits were admitted for no other purpose. The majority opinion has commented on these various exhibits to an appreciable extent. Whether there was sufficient proof of the falsity as to all these claimed exhibits was for the jury to pass on but another question relates to the appellant's familiarity with and knowledge of these particular claims and what they disclose. The appellant's, Cotton's, signature is shown to be on the requisitions attached to Exhibits 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, and 62, with the exception of three separate requisitions which were attached to certain exhibits. It is also shown that the appellant signed Exhibits 36, 37, 39, 42, 45, 46, 50, 54, 55, 60, 61, and 62 as a member of the auditing committee. It will thus be seen that the appellant had full opportunity to observe the character of these claims. He admitted he undoubtedly read and examined them when they were signed or initialed by him. If he read them, as he testified he did, he could have observed the apparent duplication of some of the articles claimed to have been purchased by the county. Croft testified as to the falsity of Exhibits 57, 59, 60, and 61. The remaining exhibits, namely, 35, 38, 56, 58, and 63 were not initialed, signed or audited by the appellant. They were not commented on by Croft in his testimony. The witness, Nimrod, a state examiner, testified regarding these exhibits. A review of his testimony and my own examination of them show that Exhibit 35 relates in part to a claim for the relining of brakes on seven cars. The invoice for this work was dated January 14, 1946, and the claim was filed January 30, 1946. The requisition was dated January 29, 1946. Exhibit 38, which has attached to it an invoice dated May 5, 1946, discloses an item for relining four-wheel brakes on all cars. The requisition was dated June 1, 1946. This claim was filed June 1, 1946. Exhibit 56 is a claim filed November 21, 1945, to which is attached a statement dated November 10, 1945. This claim discloses an item for twenty tires. The requisition for this item is dated November 21, 1945. Exhibit 58 is a claim filed December 28, 1945, to which is attached a statement for four heavy duty tires and four heavy duty truck tubes. The invoice for these tires and tubes is dated December 20, 1945, and the requisition is dated December 28, 1945. Exhibit 63 is a claim filed November 29, 1945, attached to which is a statement dated November 15, 1945. Included therein is an item for twenty-four inner tubes. An unsigned requisition is dated November 29, 1945.

As bearing on the matter of the several transactions disclosed by these several claims is the testimony of Croft that he borrowed forty-five or fifty truck tires from a tire company for delivery to the Welfare office at the time of the initial examination relative to the tire purchases. There is also the testimony of the witness, Walters, who testified that when he inspected the tires at the Welfare office there was none of the size mentioned in the several claims. The testimony of the witness, Vavra, discloses that certain of the cars had not had brakes relined, yet an examination of the record and exhibits discloses that there are claims showing that the seven Welfare cars had brakes relined four times during the period of four months. The several claims also show certain mechanical work such as setting kingpins, inclinations, caster, camber and toe-in. It is shown by Exhibits 44, 45, 46, 47, 48, 49, and 52 that this work was done on seven Welfare cars at seven different times. Authorization for this work covered a period from January 3, 1945 to May 18, 1945. The appellant's signature appears on the requisitions covering these items. There is also evidence of duplication of claims for heaters as disclosed by Exhibits 50 and 51. The witness, Vavra, testified that no change of heaters was shown on six of the cars. There is also evidence of duplication for claims of license plates. In this connection it is revealed by the evidence that the claim for the license plates for the seven cars was $147. The evidence discloses that the actual cost of the licenses was $74.75. The majority opinion asserts that there is no proof of the falsity of the claims filed. There has been certified to this court the several exhibits which have been examined and concerning which I have heretofore commented. In a large number of these claims it is observed that the statement for the claim was dated earlier than the requisition. This is not true in every case but it indicates the mode of carrying on the business activities of the county during the period in question. The establishment of the policy relative to requisitions is attributed to the appellant. It is shown by some of the requisitions attached to some of the claims that the appellant signed and approved them under the circumstances previously related. When the very purpose of a requisition is circumvented it has no value. It is also shown that in late 1945 and early 1946 the appellant thus had knowledge of this practice and participated in it. It is my belief that the evidence disclosed by the claims justified the trial court in submitting the question of the falsity of these claims to the jury for its consideration.

The jury was instructed that before it could consider these other claims that it would first have to find that they were false. The jury also had the right, as stated by the court in its instructions, to consider and pass on these matters as bearing upon the question of motive, intent, absence of mistake or accident and whether or not it embraced the common scheme and the connection and identity of the parties charged with the crime. State v. Vance, 119 Iowa 685, 687, 94 N.W. 204, and cases cited.

It is true that there is an absence of definite proof of the falsity of all the claims filed. However, it is my belief that the entire list of exhibits in question should be considered by the jury for the purposes heretofore mentioned. The appellant was amply protected by the instruction given.

The case of State v. Brady, 100 Iowa 191, 196, 197, 69 N.W. 290, 291, 36 L.R.A. 693, 62 Am. St. Rep. 560, cited in the majority opinion supports the admissibility in evidence of the claims in question. In the cited case this court approved the acceptance in evidence of all the claims filed with the county auditor by Brady for the transportation claimed to have been furnished by him as overseer of the poor for indigent persons. The court also permitted the State in that case to introduce the records of the various railroads operating out of Ottumwa which showed or purported to show the ticket sales of these respective roads in that city. The court therein stated:

"The evidence we have referred to is clearly admissible * * * for the purpose of showing the knowledge, intention, and bad faith of the defendant. It seems to us that the evidence was also admissible for the purpose of proving a systematic scheme or plan on the part of the defendant to cheat and defraud the county, thus negativing the idea that the presentation of the claim in question, was accidental, or through oversight, or mistake. * * * The jury may well have found, from the evidence complained of, that the filing of the claim, and the receipt of the warrant charged in the indictment, was a part of a plan, or scheme, adopted by the defendant to cheat and rob the county. For this purpose, as well as for the purpose of establishing the defendant's knowledge of the falsity of the claim, the evidence was admissible."

In this same case the question arose as to the admissibility of an exhibit on which there was a tabulated statement of tickets sold by representatives of the railroad. At page 199 of 100 Iowa, page 292 of 69 N.W., it is stated:

"As to the first thirty-one entries on Exhibit 13, there is no evidence showing, or tending to show, that no tickets were sold to the persons indicated on this exhibit; for Mr. Van Patten did not take charge of the railway offices until March 24, 1894, and all that portion of Exhibit 7, antedating March 24, was withdrawn from the evidence. * * * But, aside from all this, we think it clearly appears that the defendant suffered no prejudice from the ruling. This exhibit was merely a tabulated statement of the claims filed with the county by the defendant, and, if there was nothing to indicate that these first thirty-one claims were fraudulent, it is difficult to see how the defendant could have been prejudiced. The presumption would be that the claims werebona fide. Just how defendant would be prejudiced by proof ofbona fide claims filed by him, we are unable to see."

This last quoted portion of the opinion is here set out inasmuch as it is the claim of the majority opinion that the admissibility of certain exhibits which it is claimed are not shown to be false resulted in prejudice to the appellant. It is difficult for me to see how one can be prejudiced by the introduction of exhibits which the majority opinion states were not false. It would thus appear to me to be carrying the question of claimed prejudice to an extreme.

II. In Division II of the majority opinion it is the holding that defendant's objections to testimony of witnesses Walters and Powers should have been sustained and that the matters recited to the jury by these witnesses "were not competent or material to the issues of the case, and were certainly prejudicial." As disclosed by the testimony incorporated in the majority opinion the appellant, Cotton, remained silent during most of the recital of the statements made by the two previously referred to witnesses. In my judgment this was a proper matter for the consideration of the jury on the basis of the authorities cited in the majority opinion. Reference is therein made to the case of Friedman v. City of Forest City, 239 Iowa 112, 133, 134,30 N.W.2d 752, 763. In that case it is stated:

"An admission may be inferred from silence where the silence is improper or unnatural; and a definite statement of fact in connection with a failure to reply thereto, is, under certain conditions, allowed in evidence as an admission of the truth of the statement. 31 C.J.S., Evidence, section 294. However, such evidence should be received with caution and is incompetent if the situation or conditions are not such that the natural and reasonable inference from such silence is an admission of the truth of the statement. Doherty v. Edwards, 227 Iowa 1264, 1272, 290 N.W. 672. The inference may be safely made only where no other explanation is equally consistent with silence. I Wigmore on Evidence, Third Ed., section 107. See, also, Smith v. American Stores Co., 156 Pa. Super. 375, 40 A.2d 696, 698.

"Preliminary questions relating to such evidence are for the court, such as the question whether the circumstances are such as to call for a reply. 31 C.J.S., Evidence, section 296; Pulver v. Union Inv. Co., 8 Cir., Minn., 279 F. 699, 705."

By referring to 31 C.J.S., Evidence, section 296, page 1064, I find this statement:

"It is for the court to determine as a preliminary question whether the circumstances were such as reasonably to require a party to reply to a statement addressed to him.

"On the other hand, it is for the jury to decide whether the party actually heard and could understand the statement."

It has been the apparent late policy of the majority of this court to grant to the jury the right to pass upon most matters which are presented in the trial of a case. In the instant situation the trial court, in the discretion which it had, determined that the testimony was proper as bearing upon the question whether a reply would naturally be expected from the appellant. It was then for the jury to decide whether or not the appellant actually heard and understood the statements.

The majority opinion says the examination was prejudicial. On this question the court very carefully instructed the jury in instruction No. 23a, as follows:

"You are instructed that the statements alleged to have been made by the witness for the State, B.J. Powers, and by the witness for the State, Paul Walters, in the presence of the Board of Supervisors in July of 1946, as to the results and conclusions alleged by said witnesses to have been reported to the Board of Supervisors cannot be considered by you as proof of the truth of the alleged statements made by said witnesses in the presence of the defendant, but that said statements are only evidence of the fact that said witnesses made said statements at said time and place."

As further bearing upon the question of the admissibility of this testimony and the fact that the appellant did not reply when questioned, attention is called to 22 C.J.S., Criminal Law, section 734, pages 1258-1266. In this last citation at page 1259, it is stated:

"Silence alone, however, raises no legal presumption of guilt, see supra § 598, and it is not equivalent to an admission of guilt. Its effect is for the jury, and from it, in connection with other facts and circumstances, they may infer that accused is guilty. It has also been held that more must appear than that accused heard the statement; there must be some warrant from the conduct of accused after hearing the statement to give rise to a reasonable inference of acquiescence." (Italics supplied.)

Further authorities to this same effect are: 20 Am. Jur., Evidence, section 570, page 483; 80 A.L.R., annotation 1235.

III. Division III of the majority opinion is apparently set out as the basis for comments made in Division IV. Exception is taken to the first sentence of instruction No. 22 which states that certain evidence has been given "tending to show that certain statements were made by the defendant on the occasions testified to by said witnesses; these statements, if made, being admissions of certain facts tending to establish the defendant's guilt of the offense charged."

The majority opinion holds that the portion of the instruction heretofore set forth usurps and invades the province of the jury. Let us see what this instruction discloses. It is therein stated that testimony has been given "* * * tending to show that certain statements were made by the defendant." It does not say that they were made. This instruction further states "* * * these statements, if made, being admissions of certain facts tending to establish the defendant's guilt of the offense charged." (Italics supplied.) It will be observed that in this instruction it does not state that the statements were made but if they were made they might be considered as being admissions of certain facts tending to establish the defendant's guilt. It should also be kept in mind that the latter part of instruction No. 22 is as follows:

"With respect to the testimony as to the alleged oral admissions made by the defendant, you are instructed that such evidence, being the mere repetition of oral statements and therefore subject to much imperfection and mistake through misunderstanding, excitement, fear or impulse of the party charged, and the want of proper understanding of the words by the witnesses being the hearers and their imperfection of memory, such evidence should be cautiously received, but when such statements are deliberately and voluntarily made and correctly given they are often satisfactory evidence, and it is for the jury to consider all the circumstances under which such admissions were made, if they were made, and give them such weight and credit as they are entitled to, and no more and no less." (Italics supplied.)

In this last quoted portion of this instruction it refers to the alleged oral admission. It is a cardinal rule of this court that instructions should be taken as a whole and that an isolated portion of an instruction should not be made the basis of a critical analysis as to what the entire instruction sets forth.

IV. In Division V of the majority opinion comment is made concerning the refusal to give appellant's requested instruction No. 6. It is difficult to reconcile the statements made in the majority opinion with the latter part of instruction No. 22. The majority opinion uses as one basis for a reversal the fact that the court did not give requested instruction No. 6 and comments on the fact that the latter part of instruction No. 22 refers only to the testimony of the defendant and does not apply that instruction to other witnesses. It seems to me that this is too narrow a construction to be the basis of a reversal. Jurors are individuals who can apply their general knowledge and information to the facts under consideration and would know that they should apply the same rule applicable to the appellant to other witnesses. I see no basis for a reversal in Division V of the majority opinion.

V. The majority opinion in its Division VI holds that the trial court committed error in the sustaining of objections by the State to the cross-examination of the witness, Croft, with reference to his claimed ownership in certain cars which he mortgaged. The majority holds that this ruling was wrong and prejudicial. It is true that liberal cross-examination is the rule but it is also a rule which has been long recognized by this court that the matter and extent of cross-examination is within the sound discretion of the trial court. This should be particularly true when the subject matter is of a collateral nature. The cases cited in the majority opinion under this division may be applicable to the facts in the particular case but that does not necessarily mean they are applicable to the facts in the instant case.

A perusal of the majority opinion discloses that a substantial basis for a reversal is the claimed prejudicial manner in which the trial was conducted. As set forth in this dissent I, personally, am satisfied that prejudice has not resulted. This is a judicial conclusion which the majority has reached and in so doing they have substituted their judgment for that of the jury. As evidenced by the majority opinion this is apparently their appellate prerogative. I, too, have a sincere desire that every criminal case may be devoid of prejudicial circumstances but it does not appear to me there is sufficient basis for such a holding under this record. The jury is thus denied their right to pass on, what is in my judgment, a proper record.

I would affirm.