State v. Frink, No. 50770

CourtUnited States State Supreme Court of Iowa
Writing for the CourtLARSON; All Justices concur except HAYS
Citation255 Iowa 59,120 N.W.2d 432
PartiesSTATE of Iowa, Appellee, v. Harry Burke FRINK, Appellant.
Docket NumberNo. 50770
Decision Date12 March 1963

Page 432

120 N.W.2d 432
255 Iowa 59
STATE of Iowa, Appellee,
v.
Harry Burke FRINK, Appellant.
No. 50770.
Supreme Court of Iowa.
March 12, 1963.
Rehearing Denied May 7, 1963.

[255 Iowa 61]

Page 434

Grate, Moore, Warren & Potter, Des Moines, for appellant.

Evan Hultman, Atty. Gen., John Allen, Asst. Atty. Gen., and James D. Jenkins, County Atty., for appellee.

LARSON, Justice.

When the defendant Harry Burke Frink, estranged from his wife, tried to take their children from the home of his mother-in-law, Mrs. Hirchak, in Albia, Iowa, police were called. Officer Green was wounded, and the defendant was charged by indictment with the crime of assault with intent to commit murder. In the first trial the jury could not agree. In the second trial on May 7, 1962, the defendant was found guilty as charged, his motion for a new trial was overruled, and he was sentenced to serve an indeterminate term, not exceeding thirty years, in the State Penitentiary.

In this appeal defendant contends that the verdict is not sustained by sufficient evidence, that the court erred in giving certain instructions and in refusing certain requested instructions, and that on the record as a whole he did not have a fair trial. We find no prejudicial error.

From the record we learn that this exciting episode, which ended with a wounded officer and defendant's surrender at a blocked intersection on the northeast corner of the square in Albia, began when police officers were called to the Hirchak residence about 4 P.M. December 14, 1961. Defendant's wife had left his home in Chicago and had taken their four small children to her mother's home in Albia. It was defendant's purpose to remove the children to his aunt's home in Moulton, Iowa. His attempt to gain entrance to the Hirchak residence brought Police Officers Mock and Bates, as well as Lowell Harris, an Iowa Highway Patrolman, to the scene. While defendant[255 Iowa 62] testified he did not recognize the police standing near his car with drawn guns pointed at him and broke out a picture window in order to escape the threat, Patrolman Harris testified when they arrived he observed Mrs. Frink running out of the Hirchak home, pursued by defendant, that he caught her and put his arm around her neck in a headlock, and that he pointed a revolver at her head and told the officers to 'get out of here or I will kill her.' When the officers retreated, defendant took his wife back inside the house. Later Harris observed a struggle at the front door as defendant pushed Mrs. Hirchak outside and onto the ground, where she lay until taken away by ambulance. Appellant says this struggle resulted when Mrs. Hirchak opened the front door and attacked him with a butcher knife.

Shortly after that incident, defendant and his wife, who was clutching their baby in her arms, came out of the house and proceeded toward the appellant's car, where he obtained a 22 caliber rifle. Appellant kept an arm around his wife's neck, held a gun in her back, and used her as a shield as they again retreated indoors. Defendant at this time loudly advised his wife and a large number of interested bystanders, some of whom were armed, that he had enough ammunition 'to hold them off for a week.' Later Mrs. Frink ran out of the house, crossed the street and told Patrolman Harris that defendant 'is going to kill my baby.' She was hysterical as she proceeded to the home of a neighbor.

After a while defendant with his four children came out to his car. The Appanoose County Sheriff had just arrived in a distinctively-marked car including siren and red flashing lights. At a respectful distance he asked defendant to let the children go back into the house and advised him he would not be harmed. Defendant's response was a curse and a warning that if the officer would come out in plainer sight defendant would kill him.

Page 435

Pursued by the officers and others, the defendant drove to a Phillips 66 station for gas, but was unable to obtain service. As he pulled out of the station, Chief of Police Derby, dressed in uniform, fired a shot at his rear tire but missed. [255 Iowa 63] Defendant then proceeded to an APCO station and, when he could get no service, asked to speak to a highway patrolman. Patrolman Harris, Sheriff Bagley of Monroe County, and a Bart Downs, talked with defendant. Harris told him he could not obtain gasoline for him, Bagley asked him to drop his gun and give himself up in protection of the children, and Downs heard him threaten to shoot anyone who 'takes a picture of me' after one cameraman had taken a flash picture. A pickup truck tried to block his exit from that station, and defendant fired two shots at it from his 22 caliber pistol. Defendant next drove to the town square. As he approached the northeast corner, two automobiles pulled in front of him and a sheriff's car rammed him from behind, blocking him in.

Defendant testified that when he opened his door to see where to back, this jolt from behind caused the gun in his hand to fire and that this is the bullet that struck the sheriff's car. He stated no other shot was fired by him, but upon hearing other shots nearby he feared for the children's safety, threw his pistol out the window, and gave himself up.

Officers Green and Bates, however, had a different story. Arriving at the scene in the third car to the rear, they were proceeding on foot toward defendant's car from the left rear. Each testified he saw defendant open the left door of his car from four to eight inches and fire at the sheriff's car, and then fire two shots at them.

Assigned errors are argued in five divisions in appellant's brief and argument. We shall consider his Division Five first. In it he contends the court erred in overruling defendant's motion for a directed verdict at the close of the State's evidence and again at the close of all evidence. He argues there is testimony (his) that the gun only contained six shells when he obtained it, that two were fired at the truck, one at the sheriff's car, and that Sheriff Bagley found two or three remained when the gun was later examined by him. He contends others were shooting at the time, and that they could have accidentally shot Officer Green. Conceding there was such a possibility involved in this injury, the question clearly was for the jury.

The rules governing our consideration of a claim [255 Iowa 64] of insufficient evidence in a criminal case are so well established they need no discussion here. The evidence, of course, should be viewed in the light most favorable to the State. We do not decide disputed fact questions in such a case. That is the jury function, and its verdict is binding upon us unless we are satisfied it is without substantial support in the evidence or it is clearly against the weight of...

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31 practice notes
  • State v. Everett, No. 52203
    • United States
    • United States State Supreme Court of Iowa
    • March 5, 1968
    ...to support a conviction. Under such contention, we consider the evidence in the light most favorable to the state. State v. Frink, 255 Iowa 59, 64, 120 N.W.2d 432, 435; State v. Jackson, 251 Iowa 537, 541, 101 N.W.2d 731, As a witness for the state, Donald Good testified he operated a used ......
  • State v. McClelland, No. 52825
    • United States
    • United States State Supreme Court of Iowa
    • January 14, 1969
    ...claimed insufficiency of evidence to support a conviction, we view the evidence in the light most favorable to the State. State v. Frink, 255 Iowa 59, 64, 120 N.W.2d 432, 435; State v. Allnutt, Iowa, 156 N.W.2d 266, 267; State v. Anderson, Iowa, 159 N.W.2d 809, The quality of evidence neces......
  • State v. Badgett, No. 52753
    • United States
    • United States State Supreme Court of Iowa
    • May 6, 1969
    ...That is the function of the jury. State v. Horrell, Iowa, 151 N.W.2d 526, 528; State v. Wimbush, Iowa, 150 N.W.2d 653; State v. Frink, 255 Iowa 59, 64, 120 N.W.2d 432, 435, and citations; State v. Haffa, supra, 246 Iowa 1275, 71 N.W.2d 35; State v. Hammer, supra, 246 Iowa 392, 395, 66 N.W.2......
  • State v. Daves, No. 52013
    • United States
    • United States State Supreme Court of Iowa
    • September 20, 1966
    ...State v. Poffenbarger, 247 Iowa 552, 554, 74 N.W.2d 585, 586; State v. Harless, 249 Iowa 530, 531-532, 86 N.W.2d 210, 211; State v. Frink, 255 Iowa 59, 63-64, 120 N.W.2d 432, However, the state must prove all essential elements of the crime charged. State v. Mabbitt, 257 Iowa 1063, 135 N.W.......
  • Request a trial to view additional results
31 cases
  • State v. Everett, No. 52203
    • United States
    • United States State Supreme Court of Iowa
    • March 5, 1968
    ...to support a conviction. Under such contention, we consider the evidence in the light most favorable to the state. State v. Frink, 255 Iowa 59, 64, 120 N.W.2d 432, 435; State v. Jackson, 251 Iowa 537, 541, 101 N.W.2d 731, As a witness for the state, Donald Good testified he operated a used ......
  • State v. McClelland, No. 52825
    • United States
    • United States State Supreme Court of Iowa
    • January 14, 1969
    ...claimed insufficiency of evidence to support a conviction, we view the evidence in the light most favorable to the State. State v. Frink, 255 Iowa 59, 64, 120 N.W.2d 432, 435; State v. Allnutt, Iowa, 156 N.W.2d 266, 267; State v. Anderson, Iowa, 159 N.W.2d 809, The quality of evidence neces......
  • State v. Badgett, No. 52753
    • United States
    • United States State Supreme Court of Iowa
    • May 6, 1969
    ...That is the function of the jury. State v. Horrell, Iowa, 151 N.W.2d 526, 528; State v. Wimbush, Iowa, 150 N.W.2d 653; State v. Frink, 255 Iowa 59, 64, 120 N.W.2d 432, 435, and citations; State v. Haffa, supra, 246 Iowa 1275, 71 N.W.2d 35; State v. Hammer, supra, 246 Iowa 392, 395, 66 N.W.2......
  • State v. Daves, No. 52013
    • United States
    • United States State Supreme Court of Iowa
    • September 20, 1966
    ...State v. Poffenbarger, 247 Iowa 552, 554, 74 N.W.2d 585, 586; State v. Harless, 249 Iowa 530, 531-532, 86 N.W.2d 210, 211; State v. Frink, 255 Iowa 59, 63-64, 120 N.W.2d 432, However, the state must prove all essential elements of the crime charged. State v. Mabbitt, 257 Iowa 1063, 135 N.W.......
  • Request a trial to view additional results

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