State v. Galvan

181 N.W.2d 147, 1970 Iowa Sup. LEXIS 952
CourtSupreme Court of Iowa
DecidedNovember 10, 1970
Docket53428
StatusPublished
Cited by20 cases

This text of 181 N.W.2d 147 (State v. Galvan) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Galvan, 181 N.W.2d 147, 1970 Iowa Sup. LEXIS 952 (iowa 1970).

Opinion

LARSON, Justice.

By indictment defendant was charged with the crime of murder as defined in sections 690.1 and 690.2, Code of Iowa 1966. Upon trial to a jury he was found guilty of murder in the second degree as provided in section 690.3 of the Code and, pursuant to judgment, was sentenced to be imprisoned for a period of 35 years in the Men’s Reformatory at Anamosa, Iowa. He appeals. We affirm.

Appellant assigns three propositions of error relied upon for reversal. We shall attempt to consider them in the order assigned, but first we turn to the record for *149 a brief statement of the relevant facts and circumstances.

The defendant Phillip Galvan was one of many persons, young and old, present at a party at the home of the decedent Ivan Omer Black in Des Moines, Iowa. Dancing, drinking, quarreling and fighting resulted. There was testimony that at approximately 9:45 P.M. an altercation broke out in the living room of the house between defendant’s father, Celestino Galvan, and defendant’s cousin, Raul Rubin Gal-van, that carried from the living room out into the front yard. Decedent and defendant, as well as others at the party, were advised of the difficulty and arrived at the scene shortly thereafter. In an effort to dissuade those intent on violence there was extensive argument, some shoving and pushing, and several blows were struck. In this fracas the decedent Black sustained serious knife wounds in his chest.

There was testimony that defendant Phillip Galvan attacked Black after Black had hit his father Celestino, that Phillip had a knife and stabbed Black several times, that he cut his own sister when she attempted to restrain him, and that Celesti-no took the knife away from Phillip and put it in his car before he departed. Police were called and Black was taken to the hospital where he died. Phillip had left the scene before police arrived but was apprehended later when he came to the police station to visit his father, who had been arrested for speeding while on his way home.

Defendant took the stand in his own behalf and denied that he stabbed Black or that the knife, Exhibit “A”, was his knife, but his father Celestino testified that the knife Exhibit “A” was defendant’s knife, and Frances Hocking testified she heard Margaret, defendant’s sister, ask defendant to put the knife away for “You already stabbed Uncle Ivan.”

It also appeared that Celestino, arrested while driving his family home, was later charged with being intoxicated. The police officers testified that a knife was found in his possession and that he later identified it as the one he took from his son after Black was stabbed. Thereafter defendant was charged with Black’s murder and, pursuant to arraignment, pleaded not guilty.

I. For his first assignment of error appellant contends that upon the record as a whole he did not receive a fair trial and he was prejudiced by the evidence admitted, that pursuant to section 793.18, 1966 Code of Iowa, the court should review the entire record as a matter of grace without regard to technical errors.

We give due consideration to this claim as we will not allow a finding of guilt stand where there is an absence of competent proof of any essential element of the crime charged. State v. Stodola, 257 Iowa 863, 865, 134 N.W.2d 920, 921; State v. Myers, 253 Iowa 271, 274, 111 N. W.2d 660, 662. A conviction notwithstanding such absence of proof amounts to denial of a fair trial. State v. Hill, 258 Iowa 932, 935, 140 N.W.2d 731, 733; State v. Poffenbarger, 247 Iowa 552, 554, 74 N.W. 2d 585, 586. However, the statutory duty of the Supreme Court under section 793.18 of the Code to review the record in a criminal case without regard to technical errors or defects does not apply where proper or timely objections were not made. State v. Kramer, 252 Iowa 916, 109 N.W. 2d 18.

Furthermore, on defendant’s appeal from criminal conviction based on a jury verdict challenging sufficiency of evidence to sustain the verdict, we view the evidence in the light most favorable to the State and accept as established all reasonable inferences tending to support the action of the jury. It is necessary to consider only the supporting evidence whether contradicted or not. State v. Cooper, Iowa, 180 N.W.2d 424 (filed October 13, 1970); State v. Brown, Iowa, 172 N.W.2d 152, 153, and citations.

*150 The verdict of the jury is binding upon us unless it is without substantial support in the record or is clearly against the weight of the evidence. State v. Everett, Iowa, 157 N.W.2d 144, 146; State v. Frink, 255 Iowa 59, 64, 120 N.W.2d 432, 435.

Nevertheless, in extreme cases where the record itself shows the defendant has not had a fair trial, we will not hesitate to grant a new trial. We have said, “It is true that we have, on occasion and when the record showed that a fair trial had not been had, proceeded under Section 793.18, supra, to reverse. * * * But these were extreme cases, in each of which the record showed amply that the defendant had not had a fair trial. Generally we think that when a defendant is represented by competent counsel, and for reasons of strategy or otherwise questions or objections are not presented to the trial court, there is grave danger they may be considered on appeal to have been waived.” State v. Kramer, supra, 252 Iowa 916, 919, 109 N.W.2d 18, 20, and citations.

We are satisfied here that the verdict is supported by ample substantial evidence in the record, that it is not clearly against the weight thereof, and that unless the evidence admitted amounted to reversible error, defendant did receive a fair trial.

II. Appellant’s contention that he was prejudiced by evidence wrongfully admitted has no merit. Specifically, he complains of the evidence relating to (1) the altercation outside defendant’s presence, (2) the acceptance into evidence of the knife, State’s Exhibit “A”, and (3) the admission of evidence of flight. The State contends that no proper objections were timely made as to this evidence and that no exceptions to it were preserved. As we understand it, appellant’s counsel in this appeal, who was not defendant’s counsel in the trial, concedes that contention but asks our review of these issues as a matter of grace. Under the circumstances appearing here we decline to do so. See State v. Kramer, supra, 252 Iowa 916, 109 N.W.2d 18; State v. Slater, 261 Iowa 554, 153 N. W.2d 702.

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Bluebook (online)
181 N.W.2d 147, 1970 Iowa Sup. LEXIS 952, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-galvan-iowa-1970.