STATE of Iowa, Appellee, v. Danny Eugene HAWKINS, Appellant.
No. 55166.
Supreme Court of Iowa.
Jan. 17, 1973.
Petitioner denied the $2500 payment was made out of his wife‘s funds, but was unsure of the payment source. He did not personally make the payment. His ambivalent testimony, contrasted with the positive testimony of respondent that she did personally make the payment with her funds, leaves us no reason to disagree with trial court‘s finding on this point.
III. Petitioner‘s third proposition relates to the claimed excessiveness of the alimony and property award to respondent. Under Williams, supra, it is not only impermissible to consider the conduct of the parties insofar as it tends to place fault for the marriage breakdown on either spouse, but we also must reject such evidence in awarding alimony and property settlement.
We may, however, consider those other criteria laid down in Schantz v. Schantz, supra. We have carefully examined the evidence in this case in light of the remaining Schantz criteria. Some relevant facts have already been indicated in our preliminary discussion of this case. Other facts are particularly noteworthy.
It is true petitioner‘s hard labor played a large part in the accumulation of these assets. His exact inheritance was in an unspecified amount, but $9000 of it is traced into the farm payment. Similarly, a real estate contract with a balance of $4000 goes back to the same source and was awarded to him. A checking account was divided $910 to respondent and $980 to petitioner before the dissolution.
Respondent contributed $1300 of her inheritance for John‘s benefit at a critical time in his life. Of course, both parents are responsible for his welfare. She also advanced, $2500 from her own funds toward the purchase price of the homestead. She is now steadily employed although her earnings are modest. There is no evidence that either party is in ill health.
Petitioner and respondent were married for more than 15 years. Apparently a number of those years were not unhappy for either party. We hold trial court‘s award in this respect was not unfair to petitioner.
IV. Respondent‘s counsel has made application for attorney fees in the total amount of $1616.44 for services and travel expense in connection with this appeal. Services are itemized and the total charge is, we believe, fair and reasonable. However, under the circumstances here and particularly in view of the record regarding petitioner‘s present unemployment, we hold he should pay only $800 of this amount. Costs on appeal are also taxed to petitioner. Judgment shall be entered in trial court for such additional sums.
The matter is therefore affirmed as modified and remanded with directions.
Richard C. Turner, Atty. Gen., Fred M. Haskins, Asst. Atty. Gen. and Dennis F. Chalupa, County Atty., for appellee.
HARRIS, Justice.
The question is whether we should follow the rule announced in our majority opinion in State v. Everett, 157 N.W.2d 144 (Iowa 1968) or overrule that opinion and adopt the view expressed in the dissent. The majority in Everett held the offense of operating without consent under
Defendant had been drinking on the evening of April 13, 1970 and also had taken phenobarbital tablets on the night in question. According to the State‘s evidence he left his companions and took a green 1959 Chevrolet belonging to Dale Altemier without his permission. Richard Hoffman, an officer with the Newton Police Department, thereafter observed the defendant driving the vehicle without his lights on. The officer turned on his red light and siren and pursued the weaving car until defendant drove over an embankment and into a ditch. Although defendant jumped out and ran away the officer was able to observe defendant and identified him at trial.
About an hour and a half later defendant rang the doorbell of the residence of Charles W. Larson, who resides in a nearby rural area. Defendant asked to come in to get warm. Larson offered to get him a warm place but defendant rightly suspected Larson of calling the police and fled. Officers were summoned and arrested the defendant nearby.
Defendant was convicted of larceny of motor vehicle in violation of
“If any person steal, take and carry away, irrespective of value, any motor vehicle, he shall be punished * * * (as provided).”
The trial court refused over defendant‘s timely objections and in spite of his timely requests to instruct that defendant might be convicted of the included offense of operating without consent in violation of
“If any * * * person shall without the consent of the owner take, or cause to be taken, any automobile or motor vehicle, and operate or drive, or cause the same to be operated or driven, he shall * * * (be punished as provided).”
I. Under the facts presented in this case it would have been impossible for defendant to commit the offense charged without a showing of each element necessary to convict him of the lesser offense. Under the rule announced by the majority in State v. Everett, supra, this would not make the lesser offense includable because situations, though not involved or presented in the case, can be imagined in which the major offense might be committed by means other than those which would constitute a commission of the lesser offense.
There would be no advantage in again detailing the views separately expressed in the majority and dissenting opinions in State v. Everett. We now believe and hold the dissenting opinion expresses the sounder view. The dissent rightly cites State v. Marshall, 206 Iowa 373, 220 N.W. 106 (1928), as authority for the proposition the evidence of the case must be considered in determining whether one offense is includable within another.
“* * *
“Every crime charged consists of certain specific elements, and if from the elements of the crime charged certain elements thereof may be taken, thereby leaving the necessary elements of another crime, the latter would be an included offense; or, to state it in another way, if certain elements are necessary to a criminal charge, and these elements, plus certain other elements, make the necessary elements of a higher crime, then the lower crime is included in the higher one. To illustrate: Certain elements are necessary to a simple assault. If, in addition, to these elements, the evidence shows the completed assault, then we have an assault and battery, because assault is necessarily included in a charge of assault and battery. On the other hand, if to the elements of assault is added an intent to do great bodily injury, we have a higher crime, which necessarily includes assault; so with assault with intent to commit manslaughter, or with intent to commit murder. Each of these charges is included in an assault, and this is equally true of murder in either degree or manslaughter. Or to state it in still another way, where the minor offense is necessarily an elementary part of the greater, then the minor offense is included in the greater.” State v. Marshall, 206 Iowa at 375, 220 N.W. at 106.
After then reciting various examples of offenses included in others the opinion held simple larceny was included within a charge of larceny from the person. Significantly, the opinion then points out:
“* * *
“This, of course, is all subject to the further rule that the evidence must justify the submission of the included offense. That is to say, even under the charge, if there is no evidence from which the jury could find the defendant guilty of the included offense, then such included offense need not be submitted. (Citations). Also, where under the evidence the defendant is clearly guilty of the offense charged or not guilty, it is not error to fail to give instructions with reference to included offenses. (Citations).
“We turn now to the evidence in the case for an application of these rules. * * *” 206 Iowa at 377, 220 N.W. at 107.
We overrule State v. Everett. We hold the question of whether one offense is included within another is to be determined under the principles above quoted and in the light of the evidence in each case. We have said the evidence in the instant case presents a situation in which the lesser offense would have to have been included in any commission of the
This holding is consistent with the view expressed in State v. Pilcher, 158 N.W.2d 631 (Iowa 1968). It is not inconsistent with that expressed in State v. Cox, 196 N.W.2d 430 (Iowa 1972) which noted a failure of defendant to make a timely request for an instruction on the included offense.
Reversed and remanded.
All Justices concur, except UHLENHOPP and MASON, JJ., who dissent and REYNOLDSON, J., who takes no part.
UHLENHOPP, Justice (dissenting).
We should adhere to the decision in State v. Everett, 157 N.W.2d 144 (Iowa). For over a century the statute has defined an included offense as one “necessarily included” in the one with which the accused is charged.
The judgment should be affirmed.
MASON, J., joins in this dissent.