State v. Brown, No. 50476

• Court: United States State Supreme Court of Iowa
• Writing for the Court: GARFIELD
• Citation: 113 N.W.2d 286,253 Iowa 658
• Parties: STATE of Iowa, Appellee, v. Charles Noel BROWN, Appellant.
• Docket Number: No. 50476
• Decision Date: 06 February 1962

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113 N.W.2d 286 253 Iowa 658 STATE of Iowa, Appellee,
v.
Charles Noel BROWN, Appellant. No. 50476. Supreme Court of Iowa. Feb. 6, 1962.

[253 Iowa 660]

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Philip J. Willson, Council Bluffs, for appellant.

Evan Hultman, Atty. Gen., John H. Allen, Asst. Atty. Gen., and Peter J. Peters, Council Bluffs, County Atty., for appellee.

GARFIELD, Chief Justice.

Defendant Charles Noel Brown was indicted for the murder of Alvin E. Koehrsen on or about February[253 Iowa 661] 22, 1961, in violation of section 690.1, Code 1958, I.C.A. He was well represented by an able attorney appointed to defend him. A plea of not guilty was entered and trial was had. The jury found defendant guilty of murder in the first degree and directed the punishment shall be death rather than life imprisonment. (See Code section 690.5.) From judgment pursuant to the verdict defendant has appealed. We affirm the judgment.

Sufficiency of the evidence to support the verdict of first degree murder is not, and could not be, challenged. Defendant, then age 27, was staying in Minneapolis with a Josephine Nesbit on February 20, 1961. He had left his wife and four children (his mother testifies there were five) sometime before then in Minneapolis. Defendant associated 'off and on' the last four or five years with Charles E. Kelley. About a week or two before the fatal shooting of Koehrsen defendant purchased two pistols, of .38 and .32-caliber, in a Minneapolis pawnshop.

Defendant, Kelley and the Nesbit woman took a taxi on the afternoon of February 20 from Minneapolis to St. Paul where they boarded a bus for Omaha, across the Missouri river from Council Bluffs. According to defendant's voluntary statement to Council Bluffs police on the morning of February 23, they got into a little trouble in Omaha and decided to come to Council Bluffs on the 22d, get a car and take off from the area. The three took a cab from Omaha to Council Bluffs as planned on the evening of the 22d. The men left the woman in a tavern with instructions to wait until they got a car, evidently by stealing it, and returned for her.

Defendant and Kelley went to an intersection near the post office where Koehrsen, in his 1958 Chevrolet, was waiting for the stoplight to change. Defendant and Kelley got in the car and defendant, with his .38 pistol drawn, ordered Koehrsen to drive on as directed. After decedent drove about five or six blocks defendant ordered him to pull over to the curb and stop. Defendant's

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written statement above referred to states 'due to the fact I knew I was wanted in a couple of other places I used this pistol and shot this man several times. I figured I had to do this to keep him from identifying me. After I shot this [253 Iowa 662] man I got in behind the steering wheel and tried to get this car started. I failed to do this so got out and walked away.'

Koehrsen was seen falling or being pushed onto the parking from the passenger's side of his automobile. Seven to nine bullets were in his body from a gun barrel pressed against it or his clothing. After futile efforts at emergency surgery death came on the 24th.

After leaving Koehrsen defendant walked around a block to a supermarket parking lot where Kenneth Vencel was entering his Ford car. Defendant walked over to him and told him to get over, as defendant had a gun and meant business. Defendant's statement says, 'He got over and I drove this car to a residential area * * *. I pulled up to the curb and stopped and this man (Vencel) got out of this car and tried to run. I knew I had to shoot this man also as he was trying to get to a place and call help. I fired several shots at him, both while facing me and running away.' Fortunately Vencel was not mortally wounded.

After the shooting of Vencel defendant, with Kelley, drove the Ford to the tavern for Josephine and the three then went to Missouri Valley, some 20 miles north of Council Bluffs. Defendant had trouble with the Ford, could not keep it running and abandoned it in an alley at Missouri Valley. Kelley bought three bus tickets there for Kansas City and about 11 p. m. the trio boarded a bus headed south. Defendant fell asleep a couple of minutes later. About 11:20 officers stopped the bus near the north edge of Council Bluffs and the three were taken into custody.

Defendant freely admitted he shot both Koehrsen and Vencel. He said, 'You know what I did.' Also that it wasn't hard, it was easy, to shoot somebody like Koehrsen, 'he never had a gun.' He told two officers, in substance, he had gotten to the place where he didn't care any more. To one of them he said in effect that if the woman had not been with them there would have been shooting when they were arrested--they didn't have anything to lose by doing so.

Although defendant took the witness stand to testify to his 8th grade education, army service, marriage at 16, conviction of forgery in Indiana, father's alcoholism and his own [253 Iowa 663] addiction to liquor, his testimony ends with his departure from Minneapolis, it is apparent for no good purpose. Defendant denies none of the state's evidence.

I. Defendant's first assigned error asserts the state was permitted to amend the indictment to charge a different offense. The indictment accuses defendant of the crime of murder for that on or about February 22, 1961, in Pottawattamie County, Iowa, he did, with malice aforethought, kill Alvin E. Koehrsen, in violation of section 690.1, Iowa Code, 1958, I.C.A. Ten days before the trial the state moved to amend the indictment by inserting 'while attempting to perpetrate a robbery' after 'aforethought.' Defendant moved to strike the state's motion on the ground it attempted to substitute a different charge. A week before the trial the amendment was allowed.

Code section 773.42 (all references are to the Code of 1958, I.C.A.) provides: 'The court may, on motion of the state, and before or during the trial, order the indictment so amended as to correct errors or omissions in matters of form or substance.'

Section 773.45 states: 'Such amendment shall not be ordered when it will have the effect of charging * * * an offense which is different than the offense which was intended to be charged in the indictment * * *.'

This amendment does not charge a different offense than that charged in the indictment. Under our law there is but

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one crime called murder. So-called degrees of the offense do not constitute distinct crimes but gradations of the same crime for the purpose of permitting punishment to be varied according to the circumstances of greater or less enormity which characterize the criminal act. The indictment specifically charges a violation of section 690.1 and includes a charge of murder in the first degree. State v. Nutter, 248 Iowa 772, 775, 81 N.W.2d 20, 21-22, and citations. See also State v. Hodge, 252 Iowa ----, 105 N.W.2d 613, 619. First degree murder may be committed in attempting to perpetrate a robbery or one of other named crimes and by other means. Code section 690.2; State v. Jackson, 251 Iowa 537, 542, 101 N.W.2d 731, 734.

Under Code section 773.34 the state could have charged merely that Charles Noel Brown murdered Alvin E. Koehrsen. [253 Iowa 664] The amendment to the indictment was therefore unnecessary but harmless. The court's first instruction to the jury, which summarizes the indictment, does not refer to the words added by amendment. We see no impropriety in this and none is suggested.

That the evidence supports a finding of murder in attempting to perpetrate a robbery see State v. Jackson, supra, 251 Iowa 537, 545, 101 N.W.2d 731, 736; State v. Kobylasz, 242 Iowa 1161, 1167, 47 N.W.2d 167, 170; State v. Calhoun, 72 Iowa 432, 435-436, 34 N.W. 194, 196, 2 Am.St.Rep. 252; 77 C.J.S. Robbery § 9; Anno., 123 A.L.R. 1099.

II. Defendant asserts the court improperly permitted the state to exercise peremptory challenges of jurors after consecutive waivers of such challenges by both parties. After challenges of jurors for cause were waived by both sides the state waived its first peremptory challenge and defendant waived his first such challenge. When the state elected to waive its second challenge defendant objected on the ground the consecutive waivers of the first challenge amounted to a waiver of all and the state was then required to exercise its first strike. The prosecuting attorney then claimed the right to exercise the rest of his peremptory challenges notwithstanding his waiver of the first two. The court ruled the state had not waived all its challenges and permitted it to exercise those not waived. It also allowed defendant, with the state's consent, to withdraw his waiver of his first peremptory challenge and to exercise the eight challenges to which he was entitled under Code section 779.11, and all eight were exercised.

Peremptory challenges of jurors in criminal cases are to be exercised in the same manner as those in civil trials. Code section 779.10. Rule 187(g), Rules of Civil Procedure, 58 I.C.A., provides: 'After all challenges for cause are completed, plaintiff and defendant shall alternately make or waive their peremptory challenges by appropriate notations on the jury list.'

Defendant asserts the rule is that consecutive waivers of a peremptory challenge by opposing parties amounts to an acceptance of the jurors then in the jury box and precludes the exercise[253 Iowa 665] of further challenges. No rule of court, statute or decision supporting the assertion has come to our attention.

State v. Hunter, 118 Iowa 686, 689-691, 92 N.W. 872, considers a like question at length. There defendant's counsel announced he waived one more challenge. The prosecutor then said, 'So do we.' The jury was then sworn over defendant's protest he was entitled to exercise his remaining challenges. The court's action was held to be error, one of several on which a retrial was ordered. The opinion states:

'Of course, one...