*1 Iowa, Appellee, STATE of KITTELSON, Appellant.
Carleton
No. 52889.
Supreme of Iowa. Court 14, 1969.
Jan.
I59 BECKER, Justice.
On Mаrch 1965 defendant was tried county attorney’s charging information larceny in nighttime, Code, 1966, section from the Garage Huniker Monona, Iowa August Upon *3 final submission the court also instructed on submitted both the crime of larceny in an amount of more than and of lar- $20 ceny Code, in an amount less, $20 sec- tions 709.1 and Larceny day- 709.2. in the time, Code, section 709.5was not submitted. The found guilty defendant in the nighttime. He subsequently was sen- years tenced to ten and committed to Iowa State Penitentiary at Fort Madison. After notice appeal had been filed de- fendant’s attorney then application filed to attorney withdraw as of record. This ap- plication granted and defendant was days obtain new counsel. No request was for court-appointed made coun- sel. Defendant did not get new counsel. appeal was submitted to this court transcript on clerk’s by per affirmed opinion curiam January 11, 1966, dated Iowa, 139 Subsequently, N.W.2d 468. on petition for writ corpus, of habeas district judicial court for the first district held defendant had been appeal denied an with a full record and ordered defendant Clayton returned to County purpose for of granting defendant right appeal March 1965conviction. The habeas corpus judgment appealed. was not This court then determined that under pe- culiar delayed circumstances of this case a appeal granted. would be present court-appointed Defendant’s assigns counsel grounds for numerous re- Summarized, versal. the State’s evidence was as follows: County Deputy Winneshiek Sheriff Mel- patrol vin duty testified he was on Lee on August 1964. He had been notified Formaro were in Gordon Miller, Decorah, Frank R. appellant. area. They watching belong- truck Turner, Atty. Gen., Richard C. ing they parked David Formaro found Elderkin, Atty. Gen., A. Calmar, Asst. E. Deputy and F. Iowa. He and Burreson Sharp, Elkader, County Atty., appellee. watched the truck from about 1:45 A.M. to Saturday being together com- Dodge car Each told of they saw A.M. They afternoon, August driving For- Highway 52. through Calmar ing lights out. truck from Des Moines to Decorah their maro’s Dodge with followed developed where the truck mechanical normally out of Calmar proceeded The car per They miles told to fix the trouble. of efforts up to 80 speeded
but then during started truck week and start- following road and hour, gravel turned onto noon, ing Saturday thrown back to Des Moines on articles deputies saw zigzag. They August turned truck 22. The broke down Cal- car. right side of from Dodge city. car mar and left that Frank Varner and the light their red using Dodge defendant were auto- stopped. the truck at this time. mobile travel inwas Frank Varner named A man Dodge get parts three took the men seat, Formaro Gordon driver’s They for the truck. then went to defend- lying and defendant seat right front they spent ant’s home mother’s where of- told the Varner *4 the back seat. on down car, evening. entire Varner took the left following automobile he had seen ficers play pool” “to and rеturned later in some get had tried to lights and him without the At evening. Sunday about 2:30 A.M. away. they morning started for Des Moines. help and a search for called The officers so restricted license said his Formaro the roadside The search was conducted. police. He any city pass he didn’t want spark sacks of produced three night Calmar”; in car “an official had seen oil, clamp a cans of STP plugs, three following without the car when he saw screw-driver, a ham- wrench, punch a and a and up up, Varner speeded woke lights he a second after 6:15 A.M. mer. Sometime time At this drivers. told him switch produced a conducted search was seat, the tossed under Varner reached axle, heavy car .22 foot four and one-half the window from containing beer sack revolver, three pair gloves with caliber The places Formaro. with then switched them, a in small nylon stockings stuffed zigzag motion latter caused the action a five dollar containing white cloth sack defendant car. Both Formaro the bill, bill, change, a silver some one dollar the sacks they testified had never seen car was spark plug. The dollar and another the spark plugs other containing nor at that time. searched gravel alongside the road found articles the the three men to officers took the just before driving he had been where county them jail A.M. booked and at 4:30 he stopped. car Defendant said on At A.M. “suspicion burglary.” 7:00 the car and from anything see thrown high- littering the For- exhibits. had seen the various never the way. A.M. Between 10:00 and 10:30 approximately it took him maro testified Garage officers were that Huniker’s told ten miles drive the an hour and half to They burglarized. in Monona had been didn’t “he Calmar because from Decorah to the investigated, found the evidence of very traveling and wasn’t know the road” breakin; window, empty spark a broken fast. bins, plug open safe and material strewn at the was submitted to case the Donald Huniker later about floor. During the 1:45 P.M. March on oil, money spark plugs, identified the instructed the court course deliberation bag prop- dollar as his and the 1923 silver as follows: erty, garage. taken from his Huniker said garage he locked his about :00 P.M. had jury: The gentlemen “Ladies August and did discover signed bailiff delivered to me a note has day. breakin until the next by your reading as follows: foreman and part in the Defendant’s evidence consisted of “If Kittelson did not take out, testimony help actual theft but did throw Gordon Formaro and himself. years ten in penitentiary; it afterward —would did know about if less than punishment guilty larceny larceny in or of shall fine not exceed- $20 nighttime ing and imprisonment county ? $300 jail year. not exceeding one Leander Stroschein
/s/ Stroschein, provides Foreman Section larceny Leander 709.5 daytime. Under that section the convicted “The instruc- court believes punished shall be years five necessary your enlightenment tions prison $20; if the value over already case have consideration of this jаil fine of sentence exceeding $200 given you and that court should year one if the value is or less. $20 at -time. not add to such instructions this It is apparent day time of to return “You are therefore instructed night when larceny occurs an es room, read instructions sential element further, authorizing carefully, the evidence consider greater punishment. The court’s in and, possible, if arrive at verdict.”
structions told the jury was incumbent deliberation reason-, for further retired upon the prove beyond State to guilty of its verdict of and returned able doubt the taking from a building oc A.M. March nighttime curred during nighttime. 25, 1965. The evidence of taking actual *5 assignment error of I. Defendant’s first circumstantial; e., i. goods stolen in a verdict is based on failure to direct at found about A.M. Sunday morning case his at the close the State’s favor of near occupants where the of the car were The all the evidence. and at the close of of seen to have thrown articles out of
motion renewed at the close of all vehicle. From the evidence the Huniker the evidence. Garage could any have been entered at time after previous 5:00 P.M. Saturday ques assigned error raises the judicial afternoon. We take notice sufficiency generate tion of of evidence that there are daylight several hours of left in jury question larceny charge on the after August 5:00 P.M. on 23rd. the nighttime. chapter with Our 709 deals subject larceny and defines several germane Several rules ap to this larceny crimes. Section 709.1defines peal are found Daves, in State 259 Iowa any taking away stealing, carrying or 584, 585-586, N.W.2d “On a money, goods or chattels. Section 709.2 claim of support insufficient evidence to provides thing that when the value conviction, we view the evidence punishment exceeds shall $20 light most favorable to the state. The find imprisonment in penitentiary for ing guilt by trier of fact is binding county years, more than five or on unless us we are satisfied it is without jail year, exceeding by fine one or support substantial in the evidence or is both; $1000, than not more or thereof, clearly against weight (cases punishment the value is less than shall $20 cited). by imprisonment county jail days exceeding exceeding byor fine not “However, prove, state must $100. all essential charged, the crime elements * * * provides larceny (cases Section that if cited) 709.4 It is the sufficiency committed in the nighttime from build- of the connecting evidence defendant with boat, ing, vehicle trailer when this motor or crime which challenged. To aid or punishment value exceeds shall be abet means to assent to an $20 act or to lend testimony. approval either active disbelieved nine or this Decorah is countenance Calmar; miles manner en- north of is 27 participation it or some Calmar Monona, per- miles (cases cited.) it. Guilt west of couraging Highway on abetting Highway must 24 runs southwest aiding with out of Calmar. son car, defendant, Dodge with Formaro upon the facts which show be dеtermined therein, depend coming and Varner part in the and does not observed crime A.M., guilt, (cases cited.) Highway from east on at 3:45 degree another’s per at was followed miles 80 to 90 Highway hour on it turned off on before “Mere at scene of presence gravel road, property where the stolen prove defendant enough is not garage from the Monona was thrown out aid that he did committed offense commission, and later recovered the authorities. (cases cited.) and abet arguable It is the garage might have been evidence, “Any circumstantial or entered between 5 :00 P.M. and dark. Tak- a fair direct, to raise must be sufficient ing testimony defendant’s own and the en- generate some must guilt. inference It trial, tire this developed circumstances speculation, suspicion, or thing more than hypothesis is not re- such reasonable as to cited.) conjecture.” (cases quire larceny in the withdrawal of the nighttime present- charge as to bе issue may be evidence Circumstantial jury. ed to the to, more re and sometimes in value equal than, v. Man direct evidence. liable larceny II. The offenses 110. Where ly, 211 amount over in an $20 upon, is relied alone circumstantial amount under are included offenses. $20 only be con must circumstances evidence, direct, circumstantial incon guilt but with defendant’s sistent these offenses was sufficient submis de hypothesis of any rational sistent sion. Keyser, 257 innocence. State fendant’s 130 N.W.2d value, As to Mr. Huniker testified the *6 308, 297 312. 305, N.W. Iowa Boyle, 230 missing products value the saleable was crime the element Every essential jury accepted testimony, If the the $300. beyond a reason proved must be did, it apparently higher as the element of finding allow a and we will doubt able damage proved. an absence there is to stand where guilt element of oil proof an essential Horrell, In 945, State 151 N. v. Wimbush, 260 v. charged. 526, State crime W.2d 529, pur we said: common “The v. Sto State pose 150 1262, N.W.2d Iowa among persons or morе commit two 865, N.W.2d 920. 134 dola, 257 Iowa a by positive need not be shown evi
dence, may but circum from inferred record surrounding examined this stances We have the act and one’s from before, there suf and conduct care are convinced at the time and after of, circumstantial, evidence, and illegal direct commitment of the act. State v. ficient 21, 28, Kneedy, that 232 finding a this1'breakin Iowa and 3 N.W.2d jury sustain and Defendant In such cases which nighttime. citations. occurred support as to their where principal both testified would a as a conviction Formaro midnight, ordinarily after support P.M. until would a charge from 5:00 also as abouts accessory, this testi have believed for the could distinction between a their They principal accessory testified as to fact mony. also has before mid in this abrogated “sometime after state. whereabouts from Section Code, Any seen in participation gen until were Calmar 1966. in a they night” A.M., plan, providing have eral felonious and the could that such about 3:45
IfiS
opinion
there is
that
We are of
that
in this
the facts
be concerted
participation
support
presence
case do not
the conclusion that
constructive
actual or
evidence of
possession
held
defendant was in
the stolen
commission,
generally
is
suffi-
at its
goods.
When
and the defendant
criminally liable as
Scott
render one
cient to
stopped by
police,
first
supra.
were
the defend-
Kneedy,
v.
principal. State
car,
ant was not
driving
car
inferred
usually
intent
“Knowledge or
is
him,
belong
key
and he had
no
Van,
v.
from the circumstances.
open the trunk.
situation here
Participation
riding in
subject
transportation.
realities of
would
modern
possession which
See
dence of
Bennett,
316,
guilt
v.
inference of
State
92
A.2d
presumption
R.I.
168
282.
him to
or
larceny.
Defendant
assigns
IV.
as error
Blаke,
995, 221 N.W.
In
208
State
court’s failure to distinguish between an
“possession” with-
569,
specifically held
we
accessory
accessory
before the
and an
fact
inference
meaning of the law
in the
clarify
after
fact
and its failure to
may be
but
not be
larceny, need
exclusive
regard
law in this
when the
asked a
Iowa, 221
208
page
joint, stating at
1000
specific question
the matter during
about
“The contention
page 571:
N.W. at
its deliberations.
within
‘possession,’
is that
the defendant
of lar-
of inference
rule
meaning
position
The State’s
that the dis
in the
ceny, must be exclusive
between a principal
tinction
acces
and an
were
contention
If
and not otherwise.
such
sory
abrogated
has been
in Iowa
section
sustained,
never
could
joint
then a
1966,
688.1, Code,
Wesson,
State v.
citing
perpe-
more
against two
established
or
190,
165 Gonzalez, prin inquiry. People court jury Defendant was v. 259, 574; 293 N.Y. abetting People 56 cipal. by aiding Proof N.E.2d v. guilt Gezzo, principal. 385, 307 N.Y. 121 for conviction as N.E.2d 380. is sufficient Jackson, Code, 309; court v. The section 688.1. Mont. 293 P. 23A Fail matters. 1376c, page Criminal Law 1000. properly instructed on these § C.J.S. Other may between acces cases to make a distinction be cited where the ure con did not amplification fact did not consider before after the whether sories instance. instructions mandatory the first reversible error in but stitute none the less held clarify failure to instructions or changed the judge to the jury’s The note answer jury’s questions constituted part not take “If did Kittelson situation: reversible error particular under thе cir- out, help throw it actual theft but Clark, cumstances. Commonwealth v. about it afterward —would or did know Pa. 847; 170 A.2d State Beeny, larceny in or guilty be Utah 203 P.2d Powell v. United nighttime?” States, 156, (1965), (9 347 F.2d Cir.). We the dis- question posed indicates do not requires decide the amplify- statute and abettor between an aider tinction ing Questions may instructions in all cases. fact, had become accessory after be asked which can not be answered though even meaningful court without proper its exceeding function. accessory “The legal terms. couched The trial court must make its decision in who, knowledge the fact is one after each particular case under the circum- assistance guilt, the other’s renders then existing. stances detection, in the effort hinder a felon arrest, trial, punishment.” Perkins or jury’s question showed con Law, p. chapter section Criminal fusion as to the involving law accessories. pres- was defendant’s guilt It is the law this an accessory State that car, property thrоwn in the the stolen ence principal is not a and is not after fact the car out and close association treated as Philpott, such. State arrest, occupants prior Varner’s to the 1334,271 N.W. 617. If the found de midnight until absence from the other two fendant an accessory after the fact the participation in denial and defendant’s verdict of guilty under indictment would find- have the theft could resulted contrary be to our law. Section while was sufficient ing that the evidence supra, provides accessory after the fact fact, accessory as an after to convict may indicted, punished tried and but it an aider not sufficient to convict as how, doesn’t say it provide pun does nor accessory the fact. before abettor ishment. That it does not define 784.2, Code, espe- becomes seems Section clear. This conclusion reinforced important: “Report by the cially for information. fact the section has been in our Code deliberation, since After the has 1851but prose retired there has never been a any any part cution disagreement accessory if as to under it. there An after the in- fact is testimony, or if it desires to be excluded from section 688.1 nec essary implication. in the point arising formed of law Jones, supra. cause, require it must conduct officer are, course, There statutory crimes court, and, upon being brought into involving after the fact actions individ- in, required the information must be Chapter uals. receiving 712 deals with law, presence provided by of or goods and contains section 712.3: county attorney after notice oral principal. “Receiver convicted without In counsel.” defendant’s any prosecution buying, for the offense of receiving,
Similar statutes have been inter in the concealment of aiding *9 preted to mandate the property, property an answer trial obtained
166 urge was the as rever- knowing the same form of the instruction burglary,
robbery or
necessary
aver
sible error.
are therefore not concern-
obtained,
to
We
not
it shall
so
re-
person who ed with
of our Iowa law
that the
current state
trial
prove
the
nor
on
garding
propriety
placing the
property has been
of
burden
stole, robbed,
took the
proof
to which
on
issue
defendant. Cf.
a section
on
It is such
convicted.”
253,
Bennett, 393 U.S.
89 S.Ct.
refer.
must
section 688
Johnson
436,
Cir.,
21
8
(1968),
L.Ed.2d 415
386 F.2d
subject
case on the
rather short
A recent
89
Stump Bennett,
167 impossibility, is not same then he matter. No showing such such interest was alibi, ought evidence up and his shown setting an here. easily an manufac- disparaged to be not as VII. Defendant also assigns error defense.”
tured
on the basis
the prolonged
deliberation
not
Although defendant’s
of the jury.
disposition
In
view the
we
not have
should
the instruction
disparaged
need
pass
not
on the assignment except
claimed.
alibi was
given where no
been
to note we
approve
do not
forcing
witness
and his
evidence of
to deliberate to such a late hour. Here the
from about
in a car
out
he was
showed
verdict was
returned
1:45 A.M. Such
аp-
he was
A.M.
A.M. to 3:45
procedure is not conducive to balanced
Decorah to
trip from
prehended.
judgment.
In
Hoeppner,
Kracht v.
258
would cover
to Calmar
Monona and back
912,
Iowa
917,
913,
140
916,
N.W.2d
we
ele-
time
68 miles.
approximately
said: “We find no valid reason to require
involved
distances
given and the
ments
to deliberate
night.
If the at
dignity of
to rise to
such
as
torneys are unwilling
agree
the jurors
anywhere in the
alibi,
we find
nor do
proper
released under
admonition until
for
that effect
claimed
record defendant
the next morning
should be fur
of an
giving
said
have
his evidence. We
nished proper
quarters
sleeping
as author
justified
on alibi where
instruction
ized
202,
rule
Rules of
Procedure,
Civil
error.
is reversible
pleadings or evidence
provides:
‘Food and Lodging. The
1191-1193,
1185,
Dunne, 234
v.
Iowa
State
may
provide
order the sheriff to
suit
296;
Steffen, 210
v.
15 N.W.2d
State
able food and lodging
expense
at the
536,
196,202-203,
A.L.R.
78
Iowa
the county
a jury
being kept together
”
748;
224,
Wagner,
227-
State v.
207 Iowa
try
or deliberate on a cause.’
232,
882;
222
A.L.R.
61
State
N.W.
329, 331-340,
Bosworth,
152
v.
170 Iowa
objects
VIII. Defendant
to the
Lindsay,
N.W.
and State v.
152 Iowa
hammer, punch,
admission
screw
403, 405-406,
just stated with
have
conceded not to
inal p. 1288, 11th sec. 760.” LARSON, J., GARFIELD, J., and C. MOORE, JJ., SNELL and dissent. Wallace, 145 N.W. 259 Iowa State v. The nature 615, is 2d not similar. LARSON, Justice. shown charged and the circumstances shotgun admission justify did not respectfully I dissent IV from Divisions oper car in the trunk of the found locked majority opinion, and the V of the by moth by defendant but owned ated it, result. As I see desire of obvious irrele was based on er. The exclusion majority grant a new trial all suffi vancy. Here the exhibits to, dissolves, adds rather than the confusion ciently relevant sustain admission. attorneys of trial courts and when given. must instruction must not be or. sup Defendant’s motion IX. try help guide This court should no there was press grounds performance evidence on trial courts legal duty. had legal Certainly they help arrest and the officers no get can no or been had felony guidance that a opinion. cause to believe from this On the other hand, Under until properly overruled. now committed was considerable discretion has acted here the officers been vested in the trial in passing all the facts shown court occupants upon propriety necessary reasonably detaining of instructions applica jury guidance car, including considering defendant. guilt dis or principles recently have most innocence of one ble Vallier, crime, and we have been slow to find an cussed this court
JfiQ provide provisions thus ruling- on Code in a that discretion abuse of accessory after charge being trial that the Must a new trial. motion for separate and dis- the fact is considered court, now adequate guidance, without Jones, tinct agree offense. State will guess as whether this 196; Philpott, holding that an instruction with its 617; 1334, 271 N.W. adequate, or should should Am.Jur.2d Law, Criminal section I feel clarified, proper? and is is not C.J.S. 95, p. Criminal Law rulings § the trial court was correct *12 issues, fair these that it not abuse its theory pre- the case State’s as discretion, be and that the cause should sented principal was that defendant awas аffirmed. abettor, or an aider and participated that he in larceny the actual nighttime in the and majority finds In Division IV apprehended flight in from the scene error when reversible trial court committed of the shortly thereafter. as it further instruct refused to de- finding that a significance to the jury’s inquiry related to the con- theft in actual part take fendant did not sequences of a participation defendant in partici- and it afterwards public but did know of a fact, which was offense after goods. It disposal pated in the of the not the charged. offense a clarifi- request called for jury’s held 1966, provides: Code Section required the court cation of the law and deliberation, jury has retired for “After the accessory distinguish between an before * * * be informed on if it desires to I accessory nn and an after the fact cause, any point of law arising agree. cannot * * * required must the information * * law, given provided as out, defendant points the State As Thus, given only the instructiоns and an aider as principal a charged as upon which the do not an issue cover and larceny the crime abettor with necessary it requires law an instruction is in violation larceny nighttime give information. for the the additional He of the Code. and 709.4 sections 709.1 Mullenix, 212 Iowa Sta te accessory either an was not as 1047-1050, 485-487. these In Iowa after the fact. before or of- separate and distinct designated are as 12No. its Instruction trial court felt 688.2, and and 688.1 fenses under sections what told the clearly adequately and con- dependent upon the trial or neither is and an aider and principal constituted principal. viction of finding of justify sufficient to abettor words charged. The offenses guilt “The provides: Section 688.1of the Code “accessory fact” or “accessory before accessory between an before distinction used, and fact” were after the all and principal abrogated, and fact scarcely be could of the сourt language aof persons concerned in the commission involving to a crime to refer understood directly public offense, com- whether Instruction No. actions. after-the-fact offense, aid constituting the act mit that are instructed told the “You jury: commission, present, persons though not this state and abet its under the laws of aof in the commission tried, knowingly involved indicted, and must hereafter be abetting commission aiding and its crime or punished principals.” as tried, punished may charged, and and abet another principals. In order to aid provides hand, 688.2 section the other On necessary that crime it is to commit a indictment, punishment trial for himself in willfully associate the commission fact to accessory after the venture; criminal way some with the public offense. of a apply given by in it willfully participate law its instruction? that he about; required, If more is bring he wishes to then what is test? something willfully seek action that he some Obviously, theory it that was defendant’s (Emphasis make sucсeed.” his own to participate he did in the either contends, this As the supplied.) commission, before or after its adequate fairly in- instruction was did not aid or abet its commission or know applicable the law formed the as to disposition property. of the stolen I agree. to the facts revealed herein. accessory, my Any as to an instruction clarification request for no There was any inference opinion, improper, and trial and time of 12 at the No. Instruction effect as to the that the was confused adequacy objection as to no subsequent participation not rise If defendant trial. a new for motion request amplification dignity to the duty he was under inadequate, thought juries of a instruction. The fact at that attention call it to court’s may grounds confuse themselves Iowa, Kaster, 160 N.W.2d time. State join I court to them as adviser. *13 856, 859. fairly properly would hold the court and analyzed the situation and did not abuse de- majority admits IV the In Division refusing jury its discretiоn in to advise the lar- the crime of charged with fendant was subject on a original not included in its proof the nighttime and that ceny in the instructions, objected which were not to abetting is sufficient for and aiding during the trial. It admits principal. also conviction as majority’s insistence Although the matters given on these the instructions trial disturbs granting this defendant new original instruc- and that an proper, me, guide- failure rule the to set out ac- an as to the distinction between tion can determine by line which a trial court and cessory (section 688.1) the fact before request grant when it must such a (section 688.2) fact was after the citing me After several disturbs even more. Indeed, required. such an instruction had majority asserts foreign cases which the given, defendant would no doubt have require request granting the of such giving claimed reversible error. its was statutes, says: it do under similar “We note Nevertheless, jury’s the to pursuant re- (section 784.2) not decide the statute judge, the asking while in deliberation quires amplifying in all cases. instructions in the part take did not Questions “If Kittelson may which can not be asked out, or it help throw but did actual theft exceeding answered the court without he it afterward —would about know proper its function. The trial court must the larceny in larceny or of guilty make its decision in each case under the require majority would the nighttime?”, particular existing.” circumstances then additional instruction judge give an the to What circumstances must be considered? crime for foreign the on an issue to I submit help this direction is of no to trial opinion this my tried. In being was he attorneys general. courts to the bar in goes far. too hand, court here the trial theOn other circumstances, considered the instruc- did refuse trial court
The did consider enlighten to it felt would instruction which given give were sufficient to an tions function, did direct applied proper offense its and jury on the law exceed which the instructions theory under consider its charged and to further necessary? charges in- light more is and tried. What in the issues cаse was beyond request venturing Certainly it is jury indicates volved. If the it, more a re- ignored. must the court do Since did not constitute the case before presented quest amplification an instruction than it to return to the issues tell request at improper impossibility being of his Decorah and the new and given, break-in, given the instructions Monona the time of the then denied. Nowhere instruction, used, yet justify an alibi “accessory” would not is the word but I submit the evidence was all to majority require the court to venture contrary. that of law because into field of after- seemed as to effect confused evi- defendant’s concedes majority handling property. I have it showed disparaged, that dence was carefully examined the cases cited home mother’s was either his
majority and fail find one of them that up night that until in a car Decorah or goes that far. Calmar, apprehension southwest opinion majority V of its In Division this It admits many miles from Monona. court’s effort with the trial fault next finds рrove he was tended evidence was raised it felt on an issue instruct to 3:45 about A.M. automobile from by defendant. presented morning vicinity De- A.M. that permitted this evidence It concluded Calmar, Iowa, trip and that corah an alibi required giving of perhaps back to Cal- from Decorah Monona majority giving holds instruction. approximately mar would cover 68 miles. (18A) was reversible this instruction in- giving of such error because “the felt this evidence trial court by the rec- giving struction was not substantiated sufficiently justify clear ord”, confused the this instruction and, dis- if an alibi instruction such giving minds jury, in such trial court cretion I *14 was an of the court’s discretion. cases, justify abuse its de- circumstances these disagree. certainly abuse not reveal cision do the time Considering of that discretion. the failure of defend- it Although admits involved, the it is elements and distances alone would proffer an alibi defense ant to why this defendant evidence hard to see deny of such prevent giving the or dignity How much not rise to the of alibi. an the evidence offered instruction if greater justify time distance or less an dignity the of the defendant arose to require or the court to instruct on alibi? defense, simply it that evidence alibi finds much, any, How if is vested discretion majority fails Again here. the insufficient trial If such are to the court? courts attorneys any trial give to court the rule, apply such a it intelligently seems some apply this idea or rule which courts can guidance appli- be proper should for court’s idea as to what evidence is sufficient again majority cation. Here fails to permit'or require giving of alibi to an provide any guidance. I have examined instruction. majority opinion cases cited support find in none of them the find- agree I do that defendant’s evidence ing the evidence here was insufficient testimony to Formaro’s did not tend justify to the court’s alibi instruction No. establish of the essential elements alibi. 18A. It did tend to establish defendant could at majority not have been the scene оf the cite and refer to State v. crime, that at 224, 230, 231, the time of he Wagner, 222 207 N.W. Decorah, 407, 410, or near 882, which is apparently some 30 61 A.L.R. or 40 miles west applies general of Monona where rule to facts of that break-in occurred. It did to prove tend case. The court there stated: “Such ex- more than a facts, denial that he was at the traneous depending affirmative easily precise date, time, scene place, occurrences, crime an or create True, manufactured if defense. defend- conditions place at such and the relation ant’s is showing evidence not directed such to occurrences and conditions
172 he place but that was at so remote place of the commission another time * * * manufactured. he could easily under such circumstances that are present. directed to is not have Unless a If defendant’s evidence he is not is im- impossibility, attempting practical then showing such show alibi, ought possibility presence of his scene setting up an and his evidence at the crime, easily manu- he disparaged setting up to be an is not an alibi and quarrel with his defense.” I have no evidence should disparaged factured not be here, an easily Applied defendant’s that statement. manufactured In deter- defense. showing mining claimed, whether an evidence directed toward alibi is impossible at distance him be Monona defendant’s from whereabouts crime, and 40 miles scene was between 30 as shown his away is only at the evidence not the determining time the break-in must have factor. question occurred. is whether if defendant’s evi- dence is practical believed the impossibility mere failure majority concedes the presence at the scene the crime notify State of the defendant thereby established. Wagner, State v. provided 777.18 in section alibi defense as 224, 230, 207 231, 222 N.W. giving prevent the Code does not 882, and cited; Bird, A.L.R. cases later evidence if the of such instructiоn 212, 215, 207 Iowa 220 N.W. 222 N.W. determined justifies question it. The is not 411; v. Debner, 25, 28, simply is his by what defendant contends §§ Am.Jur. Bosworth, 170 Iowa defense. State 315; annotation 67 A.L.R. (Em- 149.” N.W. phasis supplied.) duty agree primarily I also Wagner, In supra, State v. pages at trial defendant’s to assess Iowa, and 231 of 207 page N.W. an alibi deciding before whether say we this had as to instruc- when the defense raised and such an whether tion given: should not be course, proper. instruction is this Of discretion is not and is reviewable absolute “Obviously, not be this instruction should appeal. seeking do given when the defendant is *15 problem presented here by way is whether than merely no more controvert under the defendant’s evidence negation state— evidence of the reasonably could attempt- facts, find that proof he was attempting by when he is not ing interpose the alibi wholly defense. extraneous to the evidence state’s only that but present, he was not not that help- is A close the cases examination of impossible it was that he been could have ful to our determination what present, impossible not merely because he — attempt may be considered to establish says there, affirmatively he not but an alibi and call for this instruction. because he was so situated or circumstanced * * * that he could not have been there. Dunne, 1185, 1191, In State v. 234 Iowa conditions, The circumstances and the facts 296, 300, is N.W.2d it said: proved alibi, to constitute an must have been not be alibi should “An instruction on such he that could not at the thereof time seeks testimony a defendant have at place of the commission evidence. merely to controvert the state’s offense, of and therefore could not have defendant has plea a guilty, of not Under perpetrator.” been the not right he did only show that not doing he was the act but that 1181, 1194, commit Stump, In State v. an alibi something else at the time. Where 119 N.W.2d we find this discussion attempting to claimed, defendant to when inter- defendant’s evidence present, prove only poses that he was a defense of alibi: I am fair the alibi notice satisfied defendant here had a in the absence of “Even Iowa, trial, that the trial court hard to required Code of tried by section provide trial, and I.C.A., the witness such a that it did not may take defendant any way in refusing and rele- abuse its testify to material discretion stand and instruct abetting he further as to may testify aiding He that vant matters. giving an alibi away place instruction under specified so far and at such revealed present at the circumstances the evidence. that he could not have been ** * I would affirm. If de- scene the crime. voluntarily go further and fendant elects to support his testify call witnesses GARFIELD, J.,C. and SNELL and required give alibi he must then the notice MOORE, join in this JJ., dissent. He He statute. assumes the offensive. testify
offers witnesses to that could the offense possibly have committed away. goes This he was too far
because at
only testimony that he was some
specific If it constitutes place. established that defense. the extent absolute To affirma- may be an absolute defense nature.”
tive in Iowa, Appellee, STATE of be- the record examination A careful of both the testimony discloses fore us time of at the and another Anthony HEISDORFFER, Appellant. Alva present have been larceny he could this No. 53100. Surely, if crime. at the scene an absolute believed, it constitute Supreme Court of Iowa. Defendant charged. the crime defense 14, 1969. Jan. home mother’s he was testified A.M. the until 2:30 from 5 P.M. Decorah or 3 A.M. 2:30 morning,
next between automobile in an A.M. he was over Decorah to Calmar
being driven from roads, or 11 miles.
gravel distance of
Formaro, corroborated behalf, called on his that he defend- story
this and testified mother
ant at the home of defendant’s *16 from 5 until A.M. Decorah P.M. made morning, they slow next trip over un-
progress to Calmar gravel and did not arrive
familiar roads until 3 :45 A.M. Calmar
stopped by Decorah is authorities. Monona, Calmar, where north of
miles occurred, is 29 or miles
this break-in believe defendant’s
east of Calmar. I
affirmative evidence location as to his this was sufficient time of break-in require, giving
justify, if No.
alibi instruction 18A. notes car III. Defendant our from exclude this factual circumstance held him, not have been opinion he should long to express consideration. no We possession of