# State v. Wegener > Supreme Court of Iowa · May 22, 1917 · 180 Iowa 102 URL: https://www.frixlaw.com/law-library/cases/7117270 ## Case - **Full name:** State of Iowa v. Ed Wegener - **Court:** Supreme Court of Iowa - **Decided:** May 22, 1917 - **Citations:** 180 Iowa 102 - **Precedential status:** Published - **Opinion:** Dissent by Evans - **Judges:** Evans, Gaynor, Ladd, Preston, Salinger, Stevens, Weaver - **Cited by:** 14 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7117270 ## Opinion text Evans, J. (dissenting). I am not able to agree to the reversal of this case. I put my dissent on the ground that the alleged misconduct of the juror resulted in no prejudice to the defendant. The misconduct of juror Foster is not such as is contemplated by Code Section 5381. That is to say, his statements did not purport to be “as of his own knowledge.” We have frequently held that a new trial will not be granted for misconduct of a juror unless prejudice be found. Hall v. Robison, 25 Iowa 91 ; State v. Cross, 95 Iowa 629 ; Carbon v. City of Ottumwa, 95 Iowa 524 ; Hathaway v. Burlington, C. R. & N. R. Co., 97 Iowa 747 . In obedience to that rule, the defendant has specified the prejudice in this: that the juror Oransky was unduly influenced by the statements of juror Foster. Did the statements of juror Foster result in prejudice to the defendant in a legal sense? In considering this question, we have no right to separate it from the record of the case in its entirety. The evidence of defendant’s guilt was overwhelming and practically undisputed. The only defense put forward was that of insanity, and the evidence in support thereof was so unsubstantial as to be hardly worthy of the name. A verdict of acquittal would have been a clear miscarriage of justice. Likewise, only in less degree, would have been a disagreement. There was no room under the evidence for a conscientious difference of opinion. The jury returned the only verdict which it could conscientiously find. This state of the record is a very important consideration,, in that it reduced the probability, if it did not eliminate the possibility, of any legal prejudice to the defendant. This was undoubtedly a proper consideration by the trial court. It was so held in the Cross case, 95 Iowa 629 . That case was very similar in its facts to the case at bar. The question of misconduct of the jury was presented on appeal. In that case, as in this, a juror had stated that *125 the defendant had been concerned in previous offenses. Upon a consideration of the entire record, the manifest guilt of the defendant was deemed a proper consideration in finding that no prejudice was suffered. Quoting from the opinion: “The evidence satisfies us that the defendant is guilty of the offense of which he was convicted, and we are of the opinion that the alleged misconduct of the jury furnishes no sufficient ground for a new trial.” In the Hathaway case, 97 Iowa 747 , a juror had assumed to state, as of his own knowledge, facts material to the issue, and became thereby clearly guilty of misconduct. In that case, the court said: “But this case should not be reversed on account of these acts of juror Joslin, if the verdict actually rendered was substantially just. In other words, if, in view of all of the evidence, the verdict effectuates justice between the parties, it should not be set aside, and the parties put to the trouble and expense of a new trial, because of the misconduct of a juror in the jury room. It seems to us, on a full examination of all of the evidence, that substantial justice has been done by the verdict rendered; that, under the view of the evidence most favorable to the plaintiff, he would only have been entitled to nominal damages, if any; * * * We are therefore of the opinion that we are not warranted in reversing this cgse for the misconduct complained of.” Turning now to the affidavit of Oransky for the specification of prejudice, the two following excerpts therefrom contain all there is therein on the subject of prejudice: “That I felt that there had been nothing shown to us which indicated that the defendant had ever been anything else than a law-abiding citizen, and I could not understand how such a man in his right mind could suddenly attempt some crime of this kind. * * * I was thoroughly tired *126 from the long confinement and strain of the trial, and I am unable to say hoto much influence the statements about.the stealing of the coal had on my mind; but the fact is that these statements were made at the time that I was attempting to determine the sanity or insanity of the defendant, and arguing that I could not understand how a man who, so far as I knew, had always been a respectable business man could get mixed in this sort of a crime unless he were crazy.” It will be noted from the foregoing that Oransky did not claim in his affidavit that he was influenced by Fosr ter’s statement to agree to the verdict. The utmost of his declaration was that he was “unable to say.” The affidavit of the juror Butler reciting his conversation with Oransky immediately before the third ballot, which resulted in the verdict, tends to show that the juror Oransky Avas not influenced in his verdict by the statements of Foster, but Avas influenced solely by absence of evidence in support of the defense of insanity. In so far as there is dispute in the affidavits, if any, the facts should be found in support of the ruling of the trial court. Upon the second ballot, the jurors stood 11 to l. for conviction. Oransky alone voted otherwise. His affidavit sets forth the reason for his vote o.f acquittal. The reason thus stated and the state of mind indicated by it were themselves wholly unjustifiable. It is argued by the defendant that it would have been clearly prejudicial error if evidence of previous crimes of the defendant had been introduced on the trial. Let this be conceded. And yet this juror declared himself unable to believe the defendant guilty because it did not appear from the evidence that he had ever been guilty before. In other words, he would not permit himself to be persuaded of the guilt of a defendant on trial for his first offense unless it were made to appear that it was not his first offense. I take it that the majority deem *127 the doubts of the juror as justified by the defense of insanity. But the previous law-abiding character of the defendant was not put forward in support of such defense of insanity. Such hypothesis was not included in defendant's hypothetical question to his experts. The utmost, therefore, that can be claimed from Oransky’s affidavit is that the statements of juror Foster drove out of his mind an idea that had no business there. Surely, therefore, in the light of our previous cases, we ought not to ignore the state of the record before us, with its overwhelming evidence of guilt. We have frequently said that the trial court has a large discretion in the matter of granting or refusing a new trial on this ground. Perry v. Cottingliam, 63 Iowa 41 . Such discretion necessarily takes account of the entire record of the case. If I am right in saying that upon this record an acquittal or disagreement of the jury would have been a clear miscarriage of justice, will a reversal by us upon this ground be anything otherwise? I would affirm. Weaver and Preston, JJ., concur in the dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7117270. Public record. Not legal advice.