State v. Duncan

[1] Although this appeal is on a clerk's transcript we have chosen to review the complete record of the trial below including the transcript of testimony as certified to this court.

[2] The record shows a county attorney's information was filed on April 30, 1942, charging the defendant with the crime of breaking and entering "the office of the D.A. Stamy Insurance Agency in Marion, Iowa, with intent to commit a public offense, to-wit: Larceny." Thereafter the defendant, by his attorneys, Jordan Jordan, moved to dismiss the information on the ground that the testimony of the State's witnesses, as disclosed by the minutes attached to the information, would not tend to connect the defendant with the crime charged. The defendant also moved for a bill of particulars. The motion to dismiss was overruled and the motion for the bill of particulars sustained. The State furnished the bill of particulars in compliance with the court order. Defendant then pleaded not guilty on May 4, 1942, and on the same day filed a demand for immediate trial during the then pending March term. This demand was overruled for the reason that the jury had been dismissed some weeks before, but a further hearing on the demand for immediate trial was continued by agreement of counsel until June 8, 1942.

On June 10, 1942, the demand for immediate trial was completely overruled by a court order to the effect that no jury had been called for the May term which was then in session and that this May term had for many years been an equity term only.

On July 2, 1942, Jordan Jordan withdrew their appearance for defendant. On August 10th defendant was advised in open court of the withdrawal of his attorneys of record and he stated that he desired time to employ counsel or to advise the court what counsel he desired appointed. On August 19th W.L. Fahey was appointed counsel for defendant at the expense of Linn county, but on the 18th day of September Mr. Fahey withdrew his appearance for defendant. On September 21, 1942, Paul V. Wilson was appointed to represent defendant, but the record shows that on the same day he withdrew his appearance as attorney for defendant, showing the court that he was otherwise engaged. The court records show that on the 22d day of September the defendant asked leave to appear pro se and the trial commenced with the defendant acting as his own counsel.

The defendant's version of what occurred on the 22d day of September just before the commencement of the trial is shown by the following quotation from a brief and argument he has filed with this court, to wit:

"On the day of my trial the presiding Judge asked me did I want counsel? I said ``yes.' County Attorney Crissman said: ``Here is attorney J.D. Patterson, he will take the case.' Right then and there I asked permission to plead my own case."

Ruth Maier, a witness for the State, testified that she was the bookkeeper employed by the D.A. Stamy Insurance Agency in Marion, Iowa. She had worked for the company about fourteen years and this office was located on the second floor at 1064 1/2 on Seventh Avenue in Marion, Iowa. The office was reached by a stairway from the street, and about 1:30 p.m. on April 29th, when she returned to the office after lunch, she saw defendant coming from the Stamy insurance office and she saw him pass into the washroom on the same floor. After she entered the office she heard defendant leave the washroom and go down the stairs, and by looking out the window of the office she was able to see him go across the park and toward the railroad tracks. She stated that it was a hot day and that defendant was sweating profusely; that he had on a light cap and a light shirt; that he was carrying a light overcoat over his left arm, and that he had on dark blue trousers with a newspaper in his hip pocket, and had a scab on his nose and on the left side of his face. She further testified that after he passed out of sight down toward the railroad tracks she examined the office and noticed drops such as perspiration drops around the safe, which she stated were not there when she went out to lunch. She stated that the safe was locked when she went to lunch but this merely meant closed with the dial partly turned. She opened the safe and found the contents of the cash boxes were missing. She testified that there was around $220 in the safe. There were a $2 bill and seven silver dollars in the safe. She called her employer, Mr. Sheets, and then the chief of police. When the chief of police came she described the man to him and to Mr. Sheets and she left with the chief in his car to see if they could locate the man along the tracks and Mr. Sheets went toward the railroad yards. The man was not located on this trip and she went back to the office and in about three quarters of an hour she was called down to the city hall to identify the man she had seen in the hallway.

Miss Maier's story was corroborated by the police chief to the extent that he had received his description of the man from Miss Maier and upon his second trip to the railroad yards he located defendant talking to one of the trainmen. The police chief immediately arrested him and brought him to the city hall in Marion. At the time he was arrested he had on a cap and was carrying a topcoat and had a newspaper sticking out of his hip pocket and there were scabs on his nose and cheek. The chief and other witnesses testified that the defendant had brown cotton gloves on his person, which were moist, and a $2 bill and seven silver dollars as part of $132.66 in bills and coins found on his person at the time of his arrest. An additional sum of $26.21 was found on his person sometime later when he was in jail. Mr. Sheets was with the police chief when the arrest was made in the railroad yards at Marion.

Upon defendant's person there was also found a greenish paper sack, which the operator of a five-and-ten-cent store in Marion recognized as being from his store. This store was operated under the Ben Franklin system and the sack had the Ben Franklin mark on it. A salesgirl in this store testified that she recognized the defendant as being a person who came into the store on the day of the robbery, between 11 and 12 o'clock, and purchased a ten-cent table knife, which she placed in a greenish paper sack when she passed it across the counter to him. She, too, was able to identify him because of the cap and the scabs on his face. A deputy sheriff testified about finding a table knife with scratches on it near the railroad tracks sometime after defendant was arrested, and several witnesses testified that the office door of the insurance agency bore scratches, which appeared to be fresh, near the Yale lock, indicating that the door had been opened by inserting an instrument such as a knife under the doorstop in the vicinity of the lock. The same storekeeper who identified the paper sack as being from his store testified the table knife was similar to table knives he carried in stock and he knew of no other store in Marion handling such knives. Other witnesses testified to seeing defendant on the street in the vicinity of the Stamy office and in the vicinity of the railroad yard. A deputy sheriff testified there were no fingerprints on the safe.

Defendant took the witness stand in his own defense and was allowed, without objection, to give a long rambling statement which did little to explain the various links in the chain of evidence against him. His only explanation of the money he had on his person was that he had won it in a poker game in Omaha. He was asked if he had ever been convicted of a felony and after his affirmative reply the court refused to allow the county attorney to question him as to the number of such convictions. Testimony of the number of convictions would have been admissible. State v. Hall, 233 Iowa 1268, 11 N.W.2d 481. He complained that the county attorney asked this question twice, but this was made necessary by reason of his statement that he did not know the meaning of the word felony. The county attorney merely asked the question again after correctly advising him that a felony was an offense punishable by imprisonment in a prison or penitentiary.

We have examined the record with care and we cannot find where any advantage was taken of the defendant. The transcript shows that the trial court protected him when protection was necessary, and the county attorney did not attempt to introduce objectionable evidence. It is quite apparent that defendant could have had counsel to represent him if he had so desired.

We have also examined the court's instructions, which were, we feel, fair to defendant, and upon the whole record we find no error. The judgment is therefore affirmed. — Affirmed.

GARFIELD, HALE, MILLER, BLISS, SMITH, MANTZ, and OLIVER, JJ., concur.

WENNERSTRUM, J., dissents.