State v. Cook, 52837

• Decision Date: 09 April 1968
• Docket Number: No. 52837,52837
• Citation: 261 Iowa 1341,158 N.W.2d 26
• Parties: STATE of Iowa, Appellee, v. Kent COOK, Appellant.
• Court: Iowa Supreme Court

Page 26

158 N.W.2d 26

261 Iowa 1341

STATE of Iowa, Appellee, v. Kent COOK, Appellant.

No. 52837.

Supreme Court of Iowa.

April 9, 1968.

Mahoney, Jordan & Statton, Boone, for appellant.

Richard C. Turner, Atty. Gen., William A. Claerhout, Asst. Atty. Gen., and Stanley R. Simpson, Boone, County Atty., for appellee.

MASON, Justice.

Defendant Kent Cook was charged by county attorney's information with larceny in the nighttime contrary to section 709.4, Iowa Code, 1966. After pleas of a former judgment of acquittal and not guilty, trial to a Boone County jury resulted in his conviction. Defendant was sentenced to imprisonment in the state penitentiary for a term not to exceed ten years. From this final judgment he appeals.

I. March 18, 1967, the garage and office of the Boone Yellow Cab Company was broken and entered between 1 and 2:54 a.m. A Yellow Cab and approximately $118 in cash and coupons were taken. Shortly after 3 a.m. defendant was arrested near Iowa Falls while riding in the front seat of the stolen cab driven by Howard Russell Switzer. At the time of arrest Switzer had approximately $100 in cash on his person; defendant, approximately $27.

March 28 four county attorney's informations were filed; one charged Switzer with larceny of a motor vehicle contrary to Code section 321.82; another with larceny in the nighttime contrary to section 709.4. Identical informations were filed against defendant. Later Switzer entered a plea of guilty to the larceny in the nighttime charge and the other was dismissed.

Defendant entered a plea of not guilty to the larceny of a motor vehicle charge and would not plead to the information charging larceny in the nighttime. The court thereupon entered a plea of not guilty. Section 777.14. Trial for larceny of a motor vehicle resulted in defendant's acquittal.

Before trial on the larceny in the nighttime charge defendant moved for a bill of particulars, asking that he be informed how the State expected to prove scienter and requested particulars with respect to any money taken from the Yellow Cab building. Section 773.6. This motion was overruled. Defendant then moved the minutes of testimony be enlarged and on April 5 moved to allow discovery depositions to be taken. These motions were also overruled.

May 3 defendant moved to quash the information, contending he was formerly tried on the charge of larceny of a motor vehicle arising out of the same transaction set forth in the present information; to allow the State to proceed with the larceny charge would place him in jeopardy twice for the same offense contrary to article I, section 12, Iowa constitution and amendment 5 of the federal constitution. He further asserted the crime of larceny of a motor vehicle charged in the one information was the same species of offense as larceny in the nighttime charged in the present information; he had been placed in jeopardy on the motor vehicle theft and such jeopardy was a bar to further proceedings on the larceny in the nighttime charge; the offense, if any, was committed at the same time or within a few seconds or minutes of the event for which he had already stood trial; the minutes of testimony listed on the two informations are identical, the number and identity of witnesses listed, the facts and times of the transactions, the owner of the goods and place of theft are the same.

After the court overruled the motion to quash, defendant entered a plea of former judgment of acquittal, sections 777.11 and 777.13, which stood with the court-entered plea of not guilty.

The day of trial defendant challenged the jury panel pursuant to rule 186, Rules of Civil Procedure, as provided in section 779.3, asserting the voir dire examination of the first 16 prospective jurors revealed that the panel was made up entirely of residents of the city of Boone and all other precincts in Boone County had been eliminated therefrom in the selection of prospective jurors; the selection of the panel was contrary to chapter 609, Code, 1966. The defendant's challenge to the jury panel was overruled.

Defendant then moved for separate trial on the issue and plea of former acquittal. When this motion was overruled defendant's motion that his plea of former judgment of acquittal should be sustained by the court as a matter of law was renewed and again overruled.

In a motion for directed verdict at the close of the State's evidence defendant renewed his claim that his plea of former acquittal was a bar to the prosecution. The motion was overruled.

II. Defendant contends the trial court erred by (1) submitting the issues of jeopardy and guilt to one jury at the same time; (2) refusing to order all charges against defendant be brought in one prosecution based on events which occurred at approximately the same time and place; (3) overruling his motion for separate trial on issue of jeopardy; (4) overruling his motion for new trial when the jury considered the issue of guilt before the issue of jeopardy; (5) overruling defendant's motion for pretrial discovery; (6) submitting the case to the jury in a method contrary to the due process clause of the United States Constitution; (7) allowing testimony of certain witnesses which violated defendant's right to a fair trial; and (8) overruling his challenge to the jury panel.

We combine defendant's first, third, fourth and sixth assignments of error for determination inasmuch as his contentions in support of these rest primarily on the proposition he was subjected to double jeopardy.

III. Article I, section 12, Iowa constitution provides in part: 'No person shall after acquittal, be tried for the same offense.' Code section 777.20 similarly provides in part: 'A conviction or acquittal by a judgment upon a verdict shall bar another prosecution for the same offense, * * *.'

In the one information defendant was charged with willfully, unlawfully and feloniously taking, stealing and carrying away a certain motor vehicle, to-wit: one 1966 Rambler, license No. 8--2451, the property of Leonard Lycke, contrary to Code section 321.82 which provides in part:

'Larceny of motor vehicle. If any person steal, take and carry away, irrespective of value, any motor vehicle, he shall be punished * * *.' This statute first enacted as section 2, chapter 27o, Laws of the Fortieth General Assembly has continued as a part of our Code since 1924.

In the instant information defendant was charged with willfully, unlawfully and feloniously in the nighttime committing larceny in the private building belonging to Leonard Lycke located in Boone, by taking, stealing and carrying away from said building approximately $100 in cash contrary to section 709.4 which provides in part:

'Larceny in nighttime. If any person in the nighttime commit larceny in any * * * private building, * * * when the value of the property stolen exceeds the sum of twenty dollars, he shall be imprisoned * * *.' Since the Code of 1851, this section has appeared in various forms.

The two statutes under which defendant was charged have different origin both in time and design.

Although the evidence necessary to prove the essential elements of the crime of larceny of a motor vehicle would be admissible in a prosecution of larceny in the nighttime under the circumstances here, the same evidence may not be sufficient to establish the essential elements of larceny in the nighttime.

'The rule now generally recognized is that, in order that the plea of former jeopardy may be available, it must appear that the two offenses are in substance the same, or of the same nature, or same species, so that the evidence which proves the one would prove the other. If, however, an essential element of one offense is not necessarily present in the other, then there is no former jeopardy, although the same evidence may be offered to sustain the indictment in each case.' State v. Cowman, 239 Iowa 56, 59, 29 N.W.2d 238, 240, quoting from State v. Jacobson, 197 Iowa 547, 549, 197 N.W. 638, 639.

In determining whether there are separate statutory offenses, 'the applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, Is whether each provision requires proof of a fact which the other does not.' Gore v. United States, 357 U.S. 386, 397, 78 S.Ct. 1280, 1287, 2 L.Ed.2d 1405, (from Justice Brennan's dissent).

In order for the State to sustain a successful prosecution under section 709.4 it was necessary that the larceny be in the nighttime and in this case from the private building mentioned in the information. State v. Lawson, 196 Iowa 740, 742--743, 195 N.W. 366, 368. Neither of these facts would be essential to a prosecution under section 321.82.

'It is the identity of the offense, and not of the act, which is referred to in the constitutional guarantee against putting a person twice in jeopardy.' State v. Melia, 231 Iowa 332, 336, 1 N.W.2d 230, 232, quoting from State v. Fredlund, 200 Minn. 44, 52, 273 N.W. 353, 357, 113 A.L.R. 215.

'A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.

'* * *

'* * * the test of identity of offenses is whether the same evidence is required to sustain them; if not, then the fact that both charges relate to and grow out of one transaction does not make a single offense where two are defined by the statute.' Barnett v. Gladden, 9 Cir., 375 F.2d 235, 238, and citations.

The charge in the information of larceny of a motor vehicle is not the same offense as charged in the information in the instant case, namely, larceny from a building in the nighttime. It necessarily follows defendant's plea of former acquittal was not available as a defense in the...