*1 only, re- I would that defendant as to it had until premiums payment of ** verse. notice plaintiff seasonable Erickson, 244 Minn. Seavey v. McCORMICK, UHLENHOPP, JJ., (1955), 243-244, 69 N.W.2d join in this dissent. ineq- noted the Supreme Court Minnesota rule: different uity any that, be rule to the better believe
“We it it has been where insurer to practice the custom and aof payment the time for give notice of knowledge such premium and renewal in deal- insured STATE acquired an Iowa, Appellee, custom is insurer, insured has ings with the and, notice, rely right on such Freddie Lee HUGHES, Appellant. thereof, may not be policy absence No. 54565. giving forfeited without terminated custom that such some notice the insured Supreme Court of Iowa. has been abandoned. Sept. 19, 1972. simply
“Any would create other rule trap could be used as a convenient when it was
device to work a forfeiture of the insurer to invoke to the interest provisions policy express provisions permit it to waive its premium it was to collect the when interest to do so.” equitable estoppel rule should be in- here, failure voked based on Aetna’s notices, customary premium send the ac- ceptance payment policy on the after routinely expiration, processing
the claimed an earlier accident six months after policy, the claimed termination of and re- application without or retender of tention premium payment made. equitable estoppel Where the rule denies insurer the claim non-existence contract, of the insurance then the notice requirement apply. 515.80 should It is undisputed statutory notice never
given in the instant case. judgment below should be affirmed
against Aetna. There was no basis in the Lougee,
record for holding E. H. lia- Inc. principal ble for the acts its disclosed *2 Renda, Moines, ap-
Thomas Des for A. pellant. Turner, Gen., Atty. Allen Richard C. J.
Lukehart, Fen- Atty. Gen., Ray and Asst. ton, Atty., County appellee. Polk
UHLENHOPP, Justice. question appeal whether validly
the trial court revoked defendant’s jury A defendant Freddie found Lee Hughes uttering forged guilty of instru- ment. The court sentenced him to Reformatory Iowa Men’s for a term suspended the exceeding years, ten sentence, granted probation, him com- supervision mitted him to the Bureau of Adult Correction Services. prescribed Bureau conditions of Code, 1971, for defendant to observe. See 247.20, 247.21. §§ parole agent su- Subsequently the who pervised defendant the Bureau made heads, written stating they did; to the Bureau in their substance that defendant rights violated rule of was advised of his constitutional conditions, residence, relating them; said he understood defendant said relating employment, rule rule guns money bags and Lamar’s and two relating shelves; to law. to the were guns obedience As stuffed on latter, bags stated that defendant were found where defendant said *3 were; committed robbery Super they armed at a defendant asked much how committing money store and that he admitted four bags, $10,000, was in the was told parole agent other robberies. The thought they recom- and sighed and said he would mended get $3,000; revocation of The and defendant was arrested at bation administrator of the Bureau con- the site.
curred in the recommendation and for-
produced no
at the
Defendant
evidence
report
warded the
to the trial court.
hearing. At
revocation
the conclusion
hearing,
the trial court stated
rec-
hearing
The trial court ordered a
on the
position
preponderance
ord
a
that its
issue
probation
of revocation of
direct-
in-
of the
defendant was
evidence showed
ed that notice be
to defendant and
robbery. Accordingly,
in
volved
an armed
his attorney.
attorney
Defendant and his
probation
court
revoked defendant’s
appeared
hearing.
at the
offi-
parole
The
reformatory.
and committed him to the
report
cer’s
was before the trial court and
appealed.
Defendant
parties,
but was not offered
admit-
or
did, however,
ted in evidence. The State
urges three
In this
court
way
testimony
introduce
evidence
points:
should
ren-
the trial court
of two witnesses.
law,
opinion and
dered an
conclusions
permitted testimony of a
not have
should
One witness was the
adminis-
robbery
not been
for which defendant had
trator of the
objected
Bureau. Defendant
convicted, and should not have admitted
testimony by
regarding
that witness
parole
in evidence
officer’s
report,
of the
contents
not
as
based
present for cross-ex-
without that officer
personal knowledge. The trial court al-
amination.
subject
lowed the
testify
witness to
to the
objection.
notice,
The witness
that he
not
that
testified
contend
Defendant does
hearing,
once talked to
not afforded.
defendant about defendant’s
and counsel were
employment.
analogous
lack of
He further
a situation
testified Thus we do not have
major
Mempa
defendant’s other
Rhay,
violation was
389 U.S.
88 S.Ct.
v.
parole
Morrissey
failure to
Brew
officer as
19
L.Ed.2d
instructed, and that he was aware defen-
er,
2593, 33 L.Ed.2d
408 U.S.
92 S.Ct.
charged
robbery
dant had been
Here
with
with
the
permitted
trial court should not have
police
testify
the
the rob
officer
about
Nevertheless,
our decisions
bery
de
the
of which
at
Valu store
indicating
language clearly
that
contain
convicted,
fendant had not been
because
arbitrarily,
probation
be
cannot
revoked
the stand
defendant could not take
without
capriciously,
any information.
or without
danger
himself in
incriminating
of
connec
1193,
Bennett,
1197,
251
104
Lint v.
robbery.
that
with
564;
capriciously
(“arbitrarily,
N.W.2d
567
information”);
v.
any
or
Curtis
without
did
seek revocation
not
1164, 1170,
Bennett,
131
256 Iowa
subsequent
a
probation for conviction of
1,
v.
(“arbitrarily”).
4
also State
See
The'probation
that
condition was
offense.
Rath,
468
258 Iowa
139 N.W.2d
himself in obedi-
defendant would conduct
exceeding
(claim
discretion);
21 Am.
condition,
the
ence
to law. Under
(“court
at 536
Criminal Law 568
§
Jur.2d
question
defendant had dis-
was whether
arbitrarily, however, or accord
cannot act
obeyed
law,
had been
the
not whether he
ing to
or
24
Crim
caprice”);
whim
C.J.S.
law,
disobeyed the
he
convicted.
If
had
discre
1618(11)
(“this
inal Law
at 901
even
the
violated
condition was
power
tionary
be exercised arbi
should not
prosecuted
if he
never
was
trarily
capriciously”).
The cited lan
de-
point
simply against
The law on this
guage of our
in accord
decisions is
Henderson,
F.2d
430
fendant.
Shaw v.
Morrissey
Brewer,
v.
su
rationale of
States,
1116
Kirsch v. United
(5th Cir.);
our
pra.
general principles
these
as
With
State,
(8th
173
652
Gross
Cir.);
F.2d
reference,
frame of
we turn to
75; People v.
240 Ark.
403 S.W.2d
points.
three
846;
Hicks,
Ill.App.2d
259
N.E.2d
Kennedy Maxwell,
176 Ohio St.
I. Form
Defendant
Order.
658;
Page, 481
N.E.2d
Wrone v.
P.2d
authority supporting
cites no
con
Ireland,
(Okl.Cr.App.);
first
Or.
Barker v.
tention that
the trial court should have
State,
P.2d
Toran
S.W.
filed an
of law.
opinion
conclusions
2d
(Tex.Cr.App.).
only provision
general subject
on
Report. Defen
to us is rule
Rules of
III. Admission
occurs
obviously
last
is that the
of
Civil
But
rule
dant’s
contention
Procedure.
applies
report
not have
hearing
a
ficer’s
should
been admit
a trial
not to
present
ted
present
in evidence without the officer
kind. We have no statute on
de
need not
form of revocation
One court
cross-examination. We
orders.
statute,
may
has held
cide
such
consid-
required
unless
a
whether
a
be
ered
a
when the
hearing
at
maker of
ocation need not
beyond
be established
a
Smith,
present.
People
is not
See
reasonable doubt. United States v. Lauch
li,
Cal.App.3d
Cal.Rptr. 811;
In re
(7th Cir.),
which revocation is founded
not rest
RAWLINGS,
JJ.,
and
MASON
who dis-
State,
on rumor or surmise. Williams v.
sent.
Love,
Ga.
S.E.
State v.
Annot. 29
N.C.
ments are: written notice parole.; (b) disclo- correctly The court claimed violations of trial held that parolee against requisite degree proof sure the of evidence prepon is a him; Sax, opportunity person derance to be heard in People (c) evidence. Ill.App.2d 433, documentary present 218 N.E.2d and witnesses and A.B.A. Project evidence; Justice, on and (d) Standards for Criminal to confront Probation, (unless Relating Standards 5. cross-examine adverse witnesses 4(a)(iii). State, specifically good finds See Reinmuth v. 163 the officer ; allowing (e) confrontation) Neb. cause for not N.W.2d 874. Grounds for rev showing tent. is in this hearing body such There no order a 'neutral and detached' objectionable that the evidence was exclud board, members as a traditional reaching law- ed the court in its conclusion. judicial officers or which need not be Highway Com yers; statement See Bellew Iowa State a written (f) mission, 284, 291-293, (Iowa as to the evidence relied factfinders * * 1969). hearsay rejected If the court this revoking parole. reasons for challenged by properly from con (Emphasis supplied). sideration, its order should so stated. appears in divi- following statement The I reverse for a hear- opinion: would and remand majority’s I sion ing conducted in with the re- accordance revoking proba- findings of a court “The quirements due process. basis the factual of course show tion must Morrissey v. the revocation. See RAWLINGS, J., joins in the dissent. Brewer, supra. findings of the trial fac- do state the in the record here court McCORMICK, (concurring spe- Justice participation tual basis—defendant’s cially). Super robbery at the Valu store.” Defendant claims the trial court should appear- Omitting the recitation alleged not have received evidence of we counsel parties and their ance of until he robbery unless and court’s order: set the balance out II, it. Division convicted was. majority against contention. holds having evidence reviewed “The However, good company is in issue, offered on such and information distinguished raising question. defendant has violated a fact that finds as drafters Relating of Standards Proba- that revoca- of his terms tion, Project on A.B.A. Standards by the Bureau recommended adopted Justice, Criminal a standard office Services Adult Corrections *6 point. provides: Standard 5.3 Attorney. County of Polk solely proceeding “A based revocation proba- “Accordingly, is it ordered upon of another crime ordi- commission on December the defendant granted narily prior be initiated should not shall is revoked and defendant However, disposition charge. imprison- sentence of forthwith serve upon probable showing cause that passed on him that date.” ment been another crime has committed only fails to my opinion order not probationer, court should out, supra, set comply requirement (f) discretionary authority to detain good cause specifically find it fails to probationer pending a without bail allowing determination the new criminal com- witnesses confront cross-examine charge.” III referred to division piling the are for the standard. Two reasons majority opinion or those witnesses injustice easy danger is from First police officer relating they saw to the what through of the informali- revocation abuse witness. proceeding. is the ob- ty of the Second timely received over a Evidence was upon a as- chilling vious effect objection hearsay. it was That such sertion of his fundamental constitutional subject can evidence was right against self-incrimination. Model Yet, says majority not be doubted. (1962) is in ac- 301.3(1)(c) Penal Code § hearsay is ad it has been held when cord. an mitted revocation does not constitute Postponement proceedings of discretion if the fact of violation revocation abuse charge is compe disposition is until evidence which criminal procedure it would min- preferable because pro- hazard of unfairness
imize the ceeding. should be the rule and It exception. case the cedure used not been A.B.A. standard has Since the constitution, statute or mandated in this case there is no evidence rule and proceeding, I of abuse of I, the result. in Divisions III and concur Trucking TRASK and Doden James E. Inc., Company, Appellees, Gibbs, GIBBS, Ad Glen and Glen Edward Rosemary ministrator of the estate of Gibbs, deceased, Appellants. A. No. 54960. Supreme Court of Iowa.
Sept. 19, 1972.