*1 Iowa, Appellee, STATE MORRISON, Appellant.
Ralph
No. 53882. of Iowa. 9, 1971.
Feb.
Joseph Johnston, City, ap- C. pellant. Turner, Gen., Atty.
Richard C. Gen., Laughlin, Atty. Michael Asst. J. appellee. LeGRAND, Judge. guilty
A lar- ceny of a motor vehicle violation *2 697 held 321.82, it appeals In Griffin The Code. section verdict, alleging prose- was reversible error for either the on that from sentence cutor or the court defend- to comment on for reversal. grounds as four errors testify being ant’s failure to as evidence trial im- claims the court Defendant guilt. his jury concerning properly instructed the Kimball, property; years decided five possession recently stolen Griffin, we held trial corroborating the court should be no evidence there was careful not “spirit” re- to violate Grif- accomplice as alleged his 782.5, Code; fin. instruction The quired by section testify, ant’s failure to evi- even one which in the admission of certain error cautions the to draw dence; evi- inference give he and therefrom, would reversible unless in violation of error against- himself specifically requested by defendant. Amendment 5 Constitution United States. approve While we do wording of the instruction aas model to fol- affirming court, the trial we consider lowed, we do believe it constitutes assignments these in the order listed above. error reversible that it nor conflicts with either Griffin or Kimball. those Unlike The I. defend showed cases, here it is not defendant’s silence possession ant was in of a 1964 Corvette is said which to raise an It is inference. within it automobile his possession recently property had been stolen in City. which does so. The trial court instructed the that propriety The of such an instruction has such evidence “is a circumstance to be been considered by various federal circuit taken by you into in arriving consideration courts since the case. It has in- your at verdict” that and unless satis- variably been approved. United States v. factorily explained upon it “is sufficient Coppola Cir., 991, 994; (1970), 2 424 F.2d conviction, upon which provided to base a Cir., States United v. 8 (1970), Brotherton you case beyond whole are satisfied 1288; 427 F.2d Kramer v. United a reasonable doubt defendant’s Cir., 837, 839; (1969), States 8 408 F.2d guilt.” Cir., v. Anderson United States 8 (1969), 406 F.2d Kowalewski United v. Defendant made timely to this Cir., 118, 121, (1969), States 9 418 F.2d instruction, alleging placed upon it Cir., and Smith v. United States 5 (1969), him the explaining his recent I, 413 F.2d See also Volume 1125. and, further, of stolen Instructions, Jury Federal Practice and implied guilt on his for failure Blackman, 13.11, Devitt sections testify proof. or offer as- Defendant 13.12, pages 284-290 and 52A C.J.S. serts deprived his him of Larceny 105, page 586. § right presumption constitutional privilege innocence violated every opinions These circuit court refute against self incrimination. An- raised does derson case an instruction holds such Although conceding in sub- not shift nor con- burden stantially similar approved form been by the court. stitute an adverse comment this urges we must now as refers to the instruction Kowalewski position reassess our light of Grif- Coppola statement of the “correct law.” fin v. California (1965), 380 U.S. hold same effect. and Smith S.Ct. 14 L.Ed.2d State (Iowa, Kimball Hard- be found in 1970), 176 Further Cir., 869. ing (1964), United States comply F.2d To section decided be- with 782.5 depend father, fore accomplice’s Griffin v. California was Dale case in Icenbice. None Brotherton of the other testi- mony any way tends in this opin- These cases all confirm our own defendant with the crime. The elder Icen- (Iowa 1968), v. Everett ions. See State bice testified the defendant drove into *3 144, have the 157 N.W.2d 146. We cited farmyard night at 2:30 A.M. the of the authority because so federal defendant theft a long” in “low and He car. could California, vigorously insists color, by describe it either make or supra, it does. controls. We do not believe sport but said it a positively was car. anything in do we believe there Nor identified defendant as the driver the of Kimball, supra, help State v. car. He further the testified defendant prospective application the event had yard a in conversation with son the starting is limited to trials of that case got about ten His son minutes. tried May Defendant was car with defendant and the two drove in 1969. away. too, point the regard, we out In this
transcript record) not the discloses (but frequently have We the ex gave, requested, and the court defendant istence of corroboration is for the concerning his cautionary instruction sufficiency the jury. the We have testify. (This is procedure the failure also said corroboration need case.) we later in the Kimball “strong” only and need tend to connect defendant with the commission of the of consider, must, all the we as we When Furthermore, fense. corroborating evi the cau- together including — be either circumstantial or di request— tionary given at defendant’s one rect. principles by Under the announced note no was made and when we Gill, us in State v. 154 N.W.2d proof, presumption to those Schlater, State v. doubt, innocence, are or reasonable we 603, we believe the corroboration here was they fully fairly out the satisfied set permit sufficient to submission of the case jury. States v. law for the See United jury. testimony of Dale Icen- States, Brotherton and Smith v. United bice, jury, if believed would confirm supra. both the recitation Steven Icenbice that D. defendant inwas of an auto Defendant claims there was II. answering mobile the general description testimony no corroboration of just the stolen vehicle required by section Steven D. Icenbice as question its theft. believe We of cor Code, provides: 782.5 of the was properly roboration submitted jury. conviction cannot be “A had testimony accomplice, an unless cor- III. Defendant says the trial court shall roborated other evidence which erred permitting testimony certain
tend to the defendant with Dale Icenbice in narrative This form. offense; and the cor- commission of assignment refers to a partial answer to merely if roboration is not sufficient question one only. it appeared When or the the offense show commission of answer would hearsay include some circumstances thereof.” dence, the court stopped the witness and
By special interrogatory county answer directed the attorney proceed B. Icenbice was in question Steven answer form. The accomplice. ant’s Therefore instructed to disregard the already given corroboration. by the witness. objection to this nothing Defendant made no more nor less than a singling out procedure. of, prejudicial nothing judicial on, find comment specific stricken; if in the evidence but even item of evidence. In essence this is the were, prompt ruling the trial court same condemned Bester, and its direction that be dis- answer (Iowa 167 N.W.2d 1969). regarded any possible cured error. See Gillespie, State v. 163 N.W.2d Coffee, Iowa, State v. (Iowa 1969), this court said: filed December and citations. requests “The proper referred to IV. As cross-examina argument. argued Defendant’s counsel accomplice, Icenbice, tion of his Steven confession, admission a letter introduced he had re guilt gun produced and that a rea ceived from the purpose witness for the sonable doubt could arise from such lack *4 However, discrediting him. the letter But jury evidence. to implicated also the defendant. Defendant argue should not the case for either side says now he was to use this or special call to attention matters of evi letter in to order show the his accom thought party, to be favorable to one plice argues should not be believed. at least without mention related the effect require was to him give adversary. favorable There is al dence against himself in violation of most no limit instructions of this kind Amendment Federal Constitution. practice might given be if the were approved. precedents, These doubt if this is the of evidence perhaps directly point, lend which is protection afforded constitutional holding our this division: State v. aside, under Putting Amendment 5. Dunne, supra, 234 Iowa however, 1194 - why there is another reason de- Belle v. Iowa State prevail. fendant cannot He cannot volun- Commission, Highway 43, 50-51, 256 Iowa tarily appears use evidence which advan- 311, 315; Boyer High v. Iowa N.W.2d and, tageous to him at trial when con- Assn., 1061, 152 School Athletic 260 Iowa victed, claim its use violated his constitu- in these and citations rights. tional We find no merit in this opinions. assignment. error, Finding no reversible we affirm opinion many “The Belle cites decisions judgment the trial court. instruc- for this: ‘It is well settled emphasize any unduly tions should not Affirmed. ” phase particular theory of the case.’ concur, except All BECKER Justices as to de- reasoning is valid If the above RAWLINGS, who JJ., dissent. instructions, requested should fense requested instructions. valid as BECKER, Justice. of re- The effect of matter cently property should be a respectfully I dissent. instruction. inferences to be on the The instruction recently stolen possession of drawn from RAWLINGS, It in this dissent. J., joins condemned. should