State v. Cook, No. 52837

CourtUnited States State Supreme Court of Iowa
Writing for the CourtMASON
Citation261 Iowa 1341,158 N.W.2d 26
Decision Date09 April 1968
Docket NumberNo. 52837
PartiesSTATE of Iowa, Appellee, v. Kent COOK, Appellant.

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.

[261 Iowa 1342]

Page 27

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[261 Iowa 1343] 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

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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 [261 Iowa 1344] 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 [261 Iowa 1345] 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.

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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...

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18 practice notes
  • Ex parte Rathmell, No. 973-83
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 17, 1986
    ...cert. denied 336 U.S. 918, 69 S.Ct. 640, 93 L.Ed. 1081 (1949); People v. Allen, 368 Ill. 368, 14 N.E.2d 397 (1938); State v. Cook, 158 N.W.2d 26, 261 Iowa 1341 (1968); Fleming v. Commonwealth, 284 Ky. 209, 144 S.W.2d 220 (1940); State v. Pettle, 286 So.2d 625 (La.1973); Cousins v. State, 35......
  • State v. Birkestrand, No. 57108
    • United States
    • United States State Supreme Court of Iowa
    • February 18, 1976
    ...included offense in the other. See State v. Stewart, 223 N.W.2d 250, 251 (Iowa 1974); State v. Gowins, 211 N.W.2d at 306; State v. Cook, 158 N.W.2d 26, 29--30 (Iowa 1968); People v. Schroeder, 264 Cal.App.2d 217, 70 Cal.Rptr. 491, 499 (1968). See also State v. Burton, 231 N.W.2d 577, 578 (I......
  • State v. O'Kelly, No. 55895
    • United States
    • United States State Supreme Court of Iowa
    • October 17, 1973
    ...which the other does not.' Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309. See also State v. Cook, 261 Iowa 1341, 158 N.W.2d 26. The two charges involved here have entirely different elements. This court has expressly held that an accused is not placed......
  • State v. Stewart, No. 56224
    • United States
    • United States State Supreme Court of Iowa
    • November 13, 1974
    ...is a lesser included offense of manslaughter. In order to claim the defense this would seem a necessary first step. In State v. Cook, 261 Iowa 1341, 1346, 158 N.W.2d 26, 29, we quoted with approval from earlier authorities as "The rule now generally recognized is that, in order that the ple......
  • Request a trial to view additional results
18 cases
  • Ex parte Rathmell, No. 973-83
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 17, 1986
    ...cert. denied 336 U.S. 918, 69 S.Ct. 640, 93 L.Ed. 1081 (1949); People v. Allen, 368 Ill. 368, 14 N.E.2d 397 (1938); State v. Cook, 158 N.W.2d 26, 261 Iowa 1341 (1968); Fleming v. Commonwealth, 284 Ky. 209, 144 S.W.2d 220 (1940); State v. Pettle, 286 So.2d 625 (La.1973); Cousins v. State, 35......
  • State v. Birkestrand, No. 57108
    • United States
    • United States State Supreme Court of Iowa
    • February 18, 1976
    ...included offense in the other. See State v. Stewart, 223 N.W.2d 250, 251 (Iowa 1974); State v. Gowins, 211 N.W.2d at 306; State v. Cook, 158 N.W.2d 26, 29--30 (Iowa 1968); People v. Schroeder, 264 Cal.App.2d 217, 70 Cal.Rptr. 491, 499 (1968). See also State v. Burton, 231 N.W.2d 577, 578 (I......
  • State v. O'Kelly, No. 55895
    • United States
    • United States State Supreme Court of Iowa
    • October 17, 1973
    ...which the other does not.' Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309. See also State v. Cook, 261 Iowa 1341, 158 N.W.2d 26. The two charges involved here have entirely different elements. This court has expressly held that an accused is not placed......
  • State v. Stewart, No. 56224
    • United States
    • United States State Supreme Court of Iowa
    • November 13, 1974
    ...is a lesser included offense of manslaughter. In order to claim the defense this would seem a necessary first step. In State v. Cook, 261 Iowa 1341, 1346, 158 N.W.2d 26, 29, we quoted with approval from earlier authorities as "The rule now generally recognized is that, in order that the ple......
  • Request a trial to view additional results

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