State v. Hagen
| Decision Date | 16 November 1965 |
| Docket Number | No. 51838,51838 |
| Citation | 258 Iowa 196,137 N.W.2d 895 |
| Parties | STATE of Iowa, Appellee, v. Francis Leland HAGEN, Appellant. |
| Court | Iowa Supreme Court |
James R. Hoyman, Indianola, for appellant.
Lawrence F. Scalise, Atty. Gen., Don R. Bennett, Asst. Atty. Gen., and Maynard Hayden, County Atty., Indianolo, for appellee.
Defendant was charged by indictment with larceny of domestic animals contrary to section 709.8, Code, 1962. Counsel was appointed for him at his request, and a plea of not guilty entered. Trial to jury resulted in a verdict of guilty. Motion for new trial was overruled and defendant was sentenced to imprisonment in the State Penitentiary at Fort Madison for not to exceed five years.
Defendant's appeal assigns eight separate errors which may be combined into four contentions. As they are considered they will be set forth in detail after a statement of facts.
In March 1964 pursuant to an agreement with James Brommel, defendant moved in and occupied a dwelling on a farm operated by James and Edward J. Brommel in Warren County. Defendant was to pay $20 a month rent which he could work out at $1.25 an hour. Livestock owned by James, Edward J. and their father, Edward B. Brommel, was kept on the farm for grazing. Defendant worked for the Brommels by feeding and caring for the livestock and performing other farm chores both on this farm and on Edward B. Brommel's farm. No money changed hands between the parties. This arrangement lasted until approximately April 24.
On April 24 James Brommel noticed one of his father's cows standing near the fence close to the house bawling, her calf was missing. The following day while James and his father examined the area for the missing calf, they noticed a pool of blood in the grass. Both men went to defendant's house which was padlocked and the windows covered so they could not see in. Defendant was gone. When asked on direct examination what he did after checking the house, James testified his dad called the sheriff to get a search warrant to search the premises, the sheriff got in touch with the county attorney and they all came out and searched the house. When asked what he observed upon the premises, defendant's objection as to lack of foundation for any search of defendant's premises, urging admission of such testimony would be in violation of his rights under the federal and state Constitutions, was sustained.
The sheriff called out of order testified Ed B. Brommel came to his office and made inquiry about getting immediate possession of the Hagen house. He was then asked if he knew that during the day a search warrant was obtained to search the premises previously occupied by defendant and in response answered 'Yes.' The sheriff was then asked, 'Based upon that search warrant for the premises previously occupied by Mr. Hagen, did you in fact then search those premises?' He answered, 'Yes, I did.' The sheriff was then asked, 'What did you find upon searching those premises?' Objection was again sustained.
Ed B. Brommel testified he observed the premises near defendant's residence, noticed the pool of blood previously testified to by James and observed the cow around the building bawling in the area where the blood was located. He then decided to see the sheriff, reported the missing calf and the pool of blood, brought the sheriff back to the farm, showed him the blood and returned with the sheriff to Indianola to see the justice of the peace about a search warrant which was subsequently issued.
After considerable difficulty and by using witnesses out of order several times, the State was ultimately successful in getting its exhibit S-1A, the search warrant, into evidence over defendant's objection. The warrant was issued upon Edward B. Brommel's affidavit that he 'has cause to suspect and believe * * * Hagen had taken and stolen a calf; and that said property or a part thereof is now concealed in the home of Hagen.' The sheriff was permitted to testify in detail as to the evidence touching upon the search and the resulting seizure of evidence from appellant's house.
After the introduction of exhibit S-1A, the State offered exhibits S-2 though S-8, photographs of the premises and contents of the house. All were received over defendant's objections.
The remaining exhibits, S-9 through S-21, consisting of an axe, handsaw, cutting board, sharpening stone, knives, head of the calf, meat particles, etc., were received in evidence over defendant's objections.
On cross-examination the sheriff testified he served the warrant of arrest on defendant charging him with larceny of domestic animals at the Polk County jail on April 26 and that the Hagen house was locked and secured when he first observed it.
State called Dr. Brennan, a veterinarian, for the purpose of identifying exhibit S-16 as a part of a calf weighing 400 to 450 pounds killed in the last 24 to 48 hours.
At the close of the State's evidence, defendant moved for a directed verdict, stressing the State's failure to establish by competent evidence the necessary elements of the crime charged and contending the charge should have been embezzlement rather than larceny. The motion was overruled.
Defendant testified in his own behalf he had left the premises on April 23 and never returned because he was arrested in Des Moines the next afternoon and held in jail there until September 22, 1965. He explained the covering on the windows in the rented house, stated he did not know how the items disclosed by the search got into the house and described his activities on the farm taking care of the Brommel cattle and doing other chores.
In rebuttal the State offered evidence of the amount of work done by defendant on Brommel farms, the presence of defendant's automobile in the vicinity on April 23 and more details concerning the initial arrangement with defendant for occupancy of the house.
Defendant contends there was nothing in the State's testimony which would indicate any entry had been made into defendant's home prior to issuance of a search warrant.
The following morning defendant requested permission to further cross-examine the State's witnesses, James and Ed B. Brommel and Sheriff Richardson. When the court inquired for what purpose, counsel stated it was for the purpose of delving into the affidavit of Ed B. Brommel in the search warrant proceedings and to determine what search of defendant's premises took place on the morning of the 25th.
The court allowed the examination but announced it would be out of the jury's presence and in chambers on the theory it went to a matter of procedure rather than to the main case. Counsel for defendant then announced he wished to correct his previous statement and that his cross-examination was not going to be directed to the validity of the search warrant but directed to a search made prior to the arrest and issuance of a warrant. The court then announced the matter would be heard in chambers and defendant's counsel might proceed to call witnesses for cross-examination.
The first witness, Ed B. Brommel, testified that on Saturday morning, April 25, he, James Brommel and the sheriff were present and they entered defendant's dwelling which was padlocked before the search warrant was issued, James Brommel gained entrance through an upstairs window which was locked with a snap, came downstairs, opened the door from the inside and let the sheriff and himself into the house where they found parts of what they believed to be beef; not every downstairs room was examined at that time.
Asked what he saw when he first entered the house, the witness testified they saw evidence of a calf that had been butchered, several pieces of fresh meat and things concerning a freshly butchered animal; the sheriff took no pictures on the first entry into the home and nothing was touched. 'We just looked at what we seen and left.'
They left James in charge of the premises. Ed and the sheriff went to Indianola to get a search warrant. Defendant was not present nor was he under arrest at that time other than in Des Moines on another charge.
It was after the first entry that Edward B. Brommel signed the affidavit and procured the search warrant; he gained the information for the purpose of making that affidavit from what he saw as the result of his first entry.
Defendant then moved to strike all evidence of Ed B. Brommel from the record and that the court admonish the jury not to consider it for the reason there was an illegal search and seizure of defendant's premises in violation of his constitutional rights and that exhibits S-2 through S-21, being fruits of such search and seizure, were inadmissible.
The court in commenting upon the motion stated the motion came after the State and defendant had rested and rebuttal evidence commenced for the State. The court stated, ...
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State v. Wright
...one which the courts will rigidly enforce." State v. Tonn , 195 Iowa 94, 106, 191 N.W. 530, 535 (1923), abrogated by State v. Hagen , 258 Iowa 196, 137 N.W.2d 895 (1965) ; see also Godfrey , 898 N.W.2d at 887 (explaining police conduct was regulated by common law trespass actions). C.Iowa a......
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...said: "Principles applicable to determining the legality of the search of defendant's residence are reviewed in State v. Hagen, 258 Iowa 196, 205, 137 N.W.2d 895, 900 (1965). A search is good or bad when it starts and does not change character from its success. It is not justified by what i......
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