Kiser, Application of

• Decision Date: 01 May 1968
• Docket Number: No. 10464,10464
• Citation: 158 N.W.2d 596,83 S.D. 272
• Parties: Application of Melvin KISER for a Writ of Habeas Corpus.
• Court: South Dakota Supreme Court

Page 596

158 N.W.2d 596

83 S.D. 272

Application of Melvin KISER for a Writ of Habeas Corpus.

No. 10464.

Supreme Court of South Dakota.

May 1, 1968.

Davenport, Evans, Hurwitz & Smith, Carleton R. Hoy, Sioux Falls, for appellant.

Frank L. Farrar, Atty. Gen., Walter W. Andre, Asst. Atty. Gen., Pierre, for respondent.

WUEST, Circuit Judge.

The Appellant, Melvin F. Kiser, was charged, tried and found guilty of two counts of grand larceny in the Circuit Court of Codington County, South Dakota. Count One of the Information charged him with stealing 'One (1) Remington automatic 12-gauge shotgun' from the Gamble Store of Watertown, South Dakota, on November 17, 1965.

Count Two of the Information charged him with stealing 'One (1) Remington automatic, 20-gauge, model 1100 shotgun' from Mahowald's Hardware, of Watertown, South Dakota, on November 17, 1965.

Appellant, by stipulation, was tried jointly with one Trice Morrill, who was charged by a like Information and found guilty of both counts. Each was sentenced to the penitentiary. No appeal was taken from this judgment.

Kiser, in custody at the state penitentiary, made an application for a writ of habeas corpus to the Circuit Court of Minnehaha County, South Dakota, which after a hearing on the writ, entered its judgment quashing the same. Kiser appeals from this judgment.

On appeal, he urges three grounds for reversal: (1) Improper arrest; (2) insufficiency of the Information describing the guns alleged to have been stolen; and, (3) conviction by use of evidence obtained by illegal search and seizure.

The record shows Appellant and Trice Morrill entered the Gamble Store at Watertown, South Dakota, on November 17, 1965, between 10:00 and 10:30 a.m. Kiser was carrying a blue overcoat on his arm when he entered the store, which attracted the attention of Karl Bates, serviceman for Gambles, because it was cold outside. Morrill purchased some lamp cord from Harold Schmitz, a clerk employed at the store. In the meantime, Kiser was standing at the end of the counter and according to Bates, '* * * his head was like on a swivel, going back and forth looking at everything.' Bates, still suspicious of the pair, went to a balcony in the store where he could observe their actions. He stood behind some venetian blinds where it would be difficult to be seen. Morrill then purchased a 'G. I. Joe doll' from Schmitz and as Schmitz and Morrill were walking toward the till, Kiser turned and walked down the south side of the toy racks and as he walked, he hung the blue coat over his shoulder. When he reached the gun rack, according to Bates, 'he turned around and bent down and he looked all through these holes that he could see through back towards the till, and then he turned around and with his right hand, reached up and took a gun from the rack and put it underneath his coat and turned and walked out.' In the meantime, Morrill had paid for the 'G. I. Joe doll' and he and Kiser arrived at the front door at about the same time, leaving the store together. Bates reported the theft to the clerk, Schmitz, and proceeded to follow Kiser and Morrill. The pair went south and upon observing Bates following them, quickened their gait. They went around a corner and Bates next saw them in a dark Oldsmobile with a black and white license, which was driven out of sight.

Bates gave a description of the automobile to Bob Stohr, Gamble's appliance salesman, who in turn gave the description to the Watertown Police.

Between 10:30 and 11:00 a.m., on November 17, 1965, Armond Vik, Sheriff of Deuel County, South Dakota, received a radio message from the Watertown Police to proceed to the junction of Highways 212 and 77, which is twenty-one miles east of Watertown and commonly referred to as Tunerville Junction. When Vik arrived at the Tunerville Junction, he saw Kiser and Morrill standing beside a 1959 Oldsmobile. At the trial he described the automobile as '* * * dark green, it was a dirty green, it looked almost black, but it was dark green.' He further testified the rear license plate was a black and white Indiana plate.

Vik held Appellant and Morrill until other officers arrived. The first officer to arrive was Highway Patrolman Lofswold. Shortly thereafter, Codington County Deputy Sheriff Homer Rawlins, Watertown Police officer Arlo Brenden and Karl Bates arrived. Bates identified the two men as the same persons he saw in the Gamble Store and identified the automobile as the same he saw them in at Watertown. Patrolman Lofswold searched the Oldsmobile, finding two shotguns under a blanket in the back seat, and handed the shotguns to Deputy Rawlins. The two men were instructed to return with the officers to Watertown. Kiser rode with Rawlins and Morrill with Lofswold. Officer Brenden drove the Oldsmobile. When the party arrived at Watertown, the pair were taken to the Sheriff's office where Rawlins advised them they were under arrest 'for taking a gun out of Gamble's.'

Deputy Rawlins testified that he removed a blue coat from the Oldsmobile '* * * just after we got back to town with the car', which was laying over the front seat of the Oldsmobile. He further testified that a blanket he observed over the guns in the back seat of the car at Tunerville was removed at the same time.

Officer Brenden testified he drove the Oldsmobile to Watertown. When he got into the Oldsmobile to drive it, he saw a large sack sitting in the front seat, which was partially covered with the blue overcoat. Other evidence established the large sack contained a smaller sack containing a piece of lamp cord. Also found in the larger sack was another small sack containing two small sacks of screws, a sales slip from Gambles, a sack of nails, another piece of lamp cord, a sack of screws and bolts, a sack containing sandpaper and a sales slip from Mahowald's Hardware, which showed a sale of 33 screws, 4 bolts, washers, sandpaper, nuts and electric cord. One of the smaller sacks containing nails had the imprint upon the outside 'Our Own Hardware', which was known in Watertown as Mahowald's Hardware. In the rear seat of the Oldsmobile was a 'G. I. Joe doll.'

Officer Brenden did not examine these articles when he got into the automobile, but did subsequently when they were removed to the Sheriff's office. On cross-examination he said they were on the seat where anyone could see them. The record does not specifically establish the time when the articles were taken to the Sheriff's office. However, Brenden testified he showed the articles to Deputy Sheriff Rawlins who called 'Our Own Hardware'. Mr. Mahowald, proprietor of 'Our Own Hardware', testified he was at the Sheriff's office '* * * between ten and eleven or eleven-thirty', to examine one of the shotguns found in the back seat. It may be reasonably inferred the articles were removed at approximately the same time as the blue overcoat and blanket.

Mr. Archie Patzer, manager of the Gamble Store at Watertown, South Dakota, identified one of the shotguns removed from the back seat of the Oldsmobile at Tunerville Junction as a Remington Model 1100 12-gauge automatic shotgun; that most shotguns have serial numbers and the serial number on this particular shotgun was 201054M. He testified his store maintained a 'Firearms Record' book, which was used in the operation of the store; that when a gun was received by the store, a record was immediately made in this book showing the make of gun, model number, caliber, gauge, serial number, type of action and date received; when a gun is sold, the name and address of the purchaser is listed in the record book. He further testified this particular shotgun was received by the Gamble Store on August 12, 1965, and had never been sold; that he had examined the gun in the Sheriff's office at approximately 12:30 p.m., on November 17, 1965, and identified the same from the corresponding serial number.

James Mahowald testified that he operated the Mahowald Hardware at Watertown, South Dakota; that on November 17, 1965, he saw Kiser and Morrill in his store between 9:15 and 10:00 a.m. One of the parties had a blue overcoat over his arm similar to the one identified as having been removed from the Oldsmobile by Deputy Rawlins. He testified one of the parties purchased some nails and identified one of the nails removed from the Oldsmobile as a type sold in his store. He further identified a sack removed from the Oldsmobile as a type used by his store; lamp cord removed from the Oldsmobile as a type sold in his store; another bag removed as a type used in his hardware store; sandpaper as a type of sandpaper sold in his store; and another bag as a type used in his store. He stated the sales slip contained the name of his hardware store upon it. This sales slip showed wood screws, bolts, washers, sandpaper, nails and electric cord were sold 11--17--65. After laying the proper foundation, these articles were admitted into evidence without objection.

Mahowald further testified that one of the shotguns removed from the Oldsmobile at Tunerville Junction was a Remington Model 1100 gas operated 20-gauge shotgun; that the serial number upon it was 117836X. According to the 'Federal Firearms Record' kept by his store, the gun was received at his store for sale on September 13, 1965, and had never been sold. He further said he identified the gun at the Sheriff's office on November 17, 1965, between ten, eleven or eleven-thirty a.m.

The State produced witness Harold Schmitz, the clerk in the Gamble Store and commenced to lay a foundation for the admission into evidence of the 'G. I. Joe doll', the Gamble sales slip and certain other articles removed from the large sack in the front seat of the Oldsmobile. Defense counsel interrupted the State and stipulated such exhibits could be received in evidence.

The two guns, the blue overcoat and the blanket were received without objection.

On November 18, 1965, Appellant and Morrill were charged...