Keenhold v. Dudley

Evans, C. J. , ^ „ «oraiítorel courtto°review evidence. I. The question thus presented is whether the juror Blackburn, upon whose evidence alone the conviction rests, is so conclusively impeached in character and his evidence herein discredited to such a degree that ^ ought not to be accepted as of any weight whatever unless corroborated. He was one ^ ^ jurors in the case of Powers v. Everist. Such ease was on trial before Judge Dudley in the district court of Polk County for a period of 6 or 7 weeks in February and March, 1914. Mr. Read was one of the attorneys for the defense in that case. As the trial was approaching the end, Blackburn called Read over the telephone, on the evening of March 18th, and suggested in effect that he could be of service to him for a consideration, and made an appointment to meet him in the morning. Read immediately disclosed to his associates and to the presiding judge these advances of the juror, but he did not meet his appointment with him in the morning. Other telephone calls from Blackburn resulted, whereupon he was invited to a certain room near Mr. Read’s office, where his proposition was elaborated. In brief, it was a proposition to accept $50 for hanging the jury. In the meantime, it had been so arranged between Mr. Read and Judge Dudley that Judge Dudley should walk into the room while the pretended negotiations were in progress, and this arrangement was carried out. Blackburn knew that Keenhold was well acquainted with Read. His preliminary question over the telephone to Read was whether George Keenhold was a good friend of Read’s, to which Read answered in the affirmative. He then intimated to Read that Keenhold had made a proposition to him in the interest of Read. In his testimony, he has testified very directly and positively that Keenhold suggested to him and — 528 — urged upon liim the course which he pursued; also that he pursued such course for the purpose only of entrapping Keenhold, and that he intended to disclose the entire plot to Judge Dudley at the appropriate time. ■ Contempt proceedings were immediately instituted against Blackburn, and he was duly convicted and punished. His testimony herein implicating Keenhold was all denied by Keenhold specifically and definitely. Thereupon, impeaching evidence was introduced as against Blackburn. Several policemen who had known him for many years testified as to his bad moral character and to his bad reputation for truth and veracity. It was made to appear also that he was a man without occupation ; that several years ago he was convicted in the district court of Polk County of burglary and sent to the penitentiary; that, in the very month of February, 1911, either during the period of his service as a juror or immediately before, he was caught in the act of petit larceny; that by his own admission he was at that time under the influence of cocaine; that he was a habitual user of opium; that during the trial he was using some drug, as observed by some of his fellow jurors; that he used intoxicating liquors habitually and to excess; that on March 3d he requested the loan of a dollar from Keenhold and was refused. All the foregoing matters are undisputed in the record, except that Blackburn denied that he had attempted to borrow a dollar from Keenhold on the date in question. It appears from the record also that Blackburn, as witness herein, testified to matters which are clearly shown to be false. In his negotiations with Read, he told Read that he would have to divide the money with the juror at his right. He testified, however, that he had not agreed to divide with anybody, and that he had not told Read to that effect. He also testified that during the trial he used no intoxicating liquors except at home, and that he did not visit any saloon. The testimony of a policeman was that he saw him visiting saloons every day during that period. He — 529 — testified also, as already indicated, that he was intending to disclose the plot to the presiding judge as soon as it had proceeded far enough to entrap Keenhold. This testimony was clearly false. The alleged incident upon which the State relies for corroboration is that, on March 3d, during a brief recess, Keen-hold offered intoxicating liquors to a group of three or four jurors in one of the corridors. Two jurors testified to the incident, such as it was. The contention of Keenhold on the trial was that the incident referred to was a mere jest, and that he in fact offered no liquor, except by a jesting word, and that he in fact had no liquor. This contention is entirely consistent with the testimony of the jurors as witnesses. Juror Goodbarn testified as follows: “I have known George Keenhold for many years. He is of a jolly, light-hearted disposition and does joke sometimes. I do not know when he talked to us in the corridor whether he really meant for us to have a drink or whether he was joking and joshing about it. I saw no whiskey.” Juror Davis testified as follows: “In the interview in the corridor about stocking the fish pond, somebody whom I don’t remember was coughing. What Keenhold said struck me as being a facetious remark, and it did not strike me very seriously. No liquor was shown. It does not seem to me as though Keenhold made any effort to draw any liquor out of his pocket. The incident passed right out of my mind as having no importance at all. I did not obtain the impression from what Keenhold said that a bona fide invitation to drink had been extended. Juror Blackburn tried to borrow money of me a time or two. ’ ’ If Keenhold did offer intoxicating liquor to these jurors, he was guilty of reprehensible conduct which would have merited punishment on its own account. Even then we see no fair way to connect it with the charge against him in this proceeding, or to treat it as corroboration. But we do not — 530 — think that the evidence at this point would justify a finding that the intoxicating liquor was offered to these jurors in fact, or that any intentional wrong was attempted. We feel compelled to say, therefore, that, as to the particular offense charged in this proceeding, the testimony of Blackburn was wholly uncorroborated. Not only was such testimony wholly uncorroborated, but there appear in • the’ record significant circumstances which have a clear tendency to corroborate the denials of Keenhold. Keenhold and Blackburn, though acquainted for many years, were not friends. They had never had anything to do with each other, socially or otherwise. Blackburn himself testified as follows: “I have known Keenhold for the past 15 or 18 years, and ever since he was deputy sheriff under Sheriff Stout. I had some trouble with Keenhold while lie was deputy sheriff. While Keenhold was deputy sheriff, I was convicted of a felony in this county and served time under that conviction. Since that time, I haven’t had a friendly feeling toward George Keenhold. I never told Keenhold that I felt unfriendly toward him. Since my first trouble years ago with Keenhold, I have never had any conversation with him before the Powers trial, except to occasionally speak to him in passing.” At the time of Blackburn’s previous conviction, Keen-hold was deputy sheriff and had official connection with the prosecution. Blackburn testified, concerning his attempted negotiations with Read, that on one or two occasions he started towards Read’s offibe, but desisted, for fear of being seen to go there. _ If he had the understanding with Keenhold which he pretended to have, he gave no reason, and-none is conceivable, why he • should not have depended on Keenhold, whom he supposed to be Read’s friend, to do the negotiating with Read. Keenhold was deputy game warden, and was engaged about his official duties in and about Des Moines at the very time the attempted negotiations with Read were had — 531 — by Blackburn. Unless Keenhold had an understanding with Bead, he had no possible motive to do what he is alleged to have done. It is not claimed that he had any such understanding, or that there was any taint whatever upon either party to the case or upon any attorney in the case. Indeed, the State expressly disclaims any theory of that kind. Keen-hold had no acquaintance with any party to the case nor with any attorney except Bead. Blackburn testified herein as follows: • “I had reasons for not informing Judge Dudley promptly after meeting Keenhold in Hood’s saloon. I know that Judge Dudley daily instructed us to inform him of anyone who conferred with us about jury service. I intended to tell Judge Dudley as soon as I found out how far Keenhold would go with his proposition. When Mr. Keenhold told me he was going out of town and for me to see Mr. Read, I knew then that Mr. Keenhold had gone as far as he intended to go, but I still did not inform Judge Dudley because I wanted to see what Read was going to say or what he would do. I did not know but what maybe Read was in with Keenhold. . . . I made no effort to find out whether or not Keenhold had in fact left town. He said he was going out of town, and I didn’t care whether he did or not. The only governing-motive that I had in making the trips to Read’s office and for doing as I ■ did was because of my animosity toward George Keenhold, and I desired to get even with him for some fancied wrong. That is also the reason why I did not sooner tell Judge Dudley about Keenhold’s trying to have negotiations with me.” Yet Blackburn admitted in his testimony 'that, when Judge Dudley came upon him in company with Read and asked him his business there, he promptly lied to him. The lie was as promptly contradicted by Read, and this resulted in the confession of Blackburn; so that this circumstance also corroborates Keenhold’s denials, and is very suggestive of the probability that Blackburn was using the name of — 532 — Keenhold as an excuse for his approach to Read, and upon the supposition that Keenhold was a friend of Read’s. Having committed himself to such statement, he adhered to it throughout his testimony. To recapitulate: The conviction rests upon the uncorroborated evidence of Blackburn. The circumstances tend strongly to contradict him and to corroborate the denials of Keenhold. By undisputed evidence,- Blackburn is shown to be a man _ of bad moral character and bad reputation for truth and veracity. It is shown also that he has been convicted of a felony; that he is a common liar; that he is a drunkard and a dope fiend; that his own acts contradict his testimony; that he has committed undoubted perjury in this very proceeding. Can we say that the uncorroborated evidence of such a witness is sufficient to sustain a conviction, and this notwithstanding the plausible denials of the accused, which are consistent with every circumstance surrounding the case ? To do so would be to make a travesty of judicial procedure. It is indeed a reproach to our methods of jqry selection that such a man could be drawn as a juror at all, and thereby foisted upon unsuspecting litigants. Another suggestion is pertinent at this point. If the conviction were sustained, it would have to rest upon the theory that Keenhold was an accomplice of Blackburn’s. We are not unmindful of Code Section 5489, which forbids a “conviction” upon the uncorroborated testimony of an accomplice. Whether this section can properly be held applicable to a contempt proceeding, is a question which we neither pass upon nor now consider. The plaintiff in error has claimed nothing under such section, and the question, therefore, has not been argued in the briefs. But, even though it be deemed not applicable to a contempt proceeding, nevertheless the reason underlying the statute based upon human experience appeals to the trier of fact, whether jury or judge, and warns loudly that such uncorroborated evidence is presumptively — 533 — doubtful as a matter of fact, and that it should be scrutinized and weighed with suspicious care. 2' vietíonfannui-’ lYlGnt" &6f 6T“ encetojudgment of trial troUing-ot con" II. In view of the dissenting opinions presented herewith, a further word should be added. This is not a case where the contempt is claimed to have been committed in the immediate view or presence of the court, or to have come officially to its knowledge. Nor is it so claimed by either’party. The aecu- ^ nation, was made by affidavit showing the nature of the transaction, as required by Section 4464, Code, .1897, and notice to show cause was given-Section 4465, Code. The hearing was on oral evidence, and it was preserved as directed in .Code Section 4466, and the decision of the trial, court based thereon, there being no statement of the judge made of record, as is exacted when he acts on personal knowledge. There is no room for the suggestion that peculiar personal knowledge possessed by the trial judge should be given weight, and this is not claimed, by either party to the proceedings. The only issue presented is whether the evidence, preserved as required by Sec. 4466 of the Code, warranted the judgment declaring complainant guilty of the contempt charged. The order is ijiade subject to review through proceeding in certiorari by Section 4468 of the Code. Some question is raised as to the propriety of weighing or reviewing the evidence in proceedings of this kind. And yet this has been done in eases too numerous for citation, especially in those involving the sale or keeping for sale of intoxicating liquors in violation of injunetional decrees. The point was raised in Wells v. District Court, 126 Iowa 340, and the court, speaking through Bishop, J., after referring to the statutes, said: “That by revision it was intended that the court sitting in review should pass upon the fact question involved, so far at least as to determine whether the act shown to have been committed was or was not sufficient in law to constitute a contempt, is made clear, as we think, by the reading of Code — 534 — Section 4466. There, it is provided that all the evidence upon which the action of the court is founded must be in writing, and made a -part of the record. Such would be an idle proceeding if the judgment of the court as to the legal effect or sufficiency of the evidence to make out a case of contempt could in no instance become'the subject of review. Without, further discussion, it will be sufficient to say that our reports present a number of eases where the right to review the facts in contempt cases has been assumed.by this court, and' we are agreed that in view of the statute such right is not open to question.” In Russell v. Anderson, 141 Iowa 533, the rule was stated thus: ■ “As the proceeding is quasi criminal, a conviction should not be sustained unless the proof of guilt is clear and satisfactory, ’ ’ and should be upheld if found so to be. The proposition that the evidence in contempt cases may not be reviewed and weighed is somewhat startling, in view of the very large number óf decisions where this has been done. These decisions expressly approve such practice and lay down the rule as to the quantum of evidence essential to sustain or annul the order of the trial court. We are not inclined to depart from the rule thus established. Upon the record before us, not only are we constrained to hold that this conviction is not sustained by sufficient evidence, but we are much impressed with the affirmative probability of plaintiff’s innocence of the offense charged against him. This conclusion renders our duty plain. We share with the dissenting members of the court a due degree of reluctance to interfere with the conclusions of the trial court in matters that strike so closely to the purity of proceedings before it. Such reluctance, however, will not justify our withholding from the litigant an award of his substantial rights as we see them, within the scope of our jurisdiction to review. Otherwise, the right of appeal would be without substance. In this case, we are ,assured by the character and experience of the — 535 — distinguished trial judge that no one would be swifter than he to ask of us correction of error in liis judgment if error be found. The order adjudging the plaintiff guilty of contempt is therefore — Reversed and Ann,ulled. Deemer, Ladd, Gaynor and Salinger, JJ., concur. Weaver and Preston, JJ., dissent.