State v. Haggard
| Decision Date | 22 July 1965 |
| Docket Number | No. 9583,9583 |
| Citation | 89 Idaho 217,404 P.2d 580 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Dillard Junior HAGGARD, Defendant-Appellant. |
| Court | Idaho Supreme Court |
L. Lamont Jones, Pocatello, for defendant-appellant.
Allan G. Shepard, Atty. Gen., and M. Allyn Dingel, Jr., Asst. Atty. Gen., Boise, Hugh C. Maguire, J., Pros. Atty., Pocatello, for plaintiff-respondent.
Defendant-appellant, Dillard Junior Haggard, was charged upon five separate counts with having committed the crime of burglary in the nighttime. The jury returned its verdict finding the defendant guilty of burglary in the daytime upon each of counts III and VI and guilty of burglary in the nighttime upon count IV and not guilty upon the other counts. Defendant was sentenced to be imprisoned for an indeterminate time of not to exceed five years upon each of counts III and VI to run concurrently, and for an indeterminate term of not to exceed fourteen years on count IV. This appeal is from the judgment of conviction relative to each of said three counts.
The principal issues presented by this appeal concern the validity of the search and seizure of the articles involved in each of the offenses and the sufficiency of the evidence to establish such personal possession of the stolen property by defendant as to justify a presumption of guilt of the charged offenses.
We shall first review the facts in relation to count III under which it was charged that:
'The said Dillard Junior Haggard did on April 15, 1964, after 6:00 P.M. o'clock of said day, intentionally, feloniously and burglariously enter the home of Kenneth G. Smith at 81 Willowood, Pocatello, Idaho, which residence is in the possession of and under the control of Kenneht G. Smith, with the intent to commit larcency.'
Mr. Kenneth G. Smith, testified that his house had been broken into between 6 P.M. on April 15 and 11 A.M. on April 16, 1964, and that among the articles which were taken from his home during said period were a fishing creel (Exh. B) and a fishing reel (Exh. C). Exhibit B was in the possession of Calvin Ritchie, a nephew of the defendant, when recovered by the officers. Ritchie, having been called as a witness for the State, testified that he had seen Exhibit B in the trunk of defendant's car in the month of April and that defendant had given this article to him. This testimony as uncontradicted.
Exhibit C was found by the officers April 24, 1964, on top of a wardrobe closet in a bedroom regularly occupied by defendant in the home of his mother, Amy Hill. During April 1964 defendant lived with his mother in a two-bedroom house in which there was no other occupant. Said exhibit was discovered by Detective Moldenhauer while making an investigation of Mrs. Hill's home in company with other officers. Defendant was not present at the time.
Prior to trial defendant filed his motion to suppress the evidence obtained during said investigation or search of Mrs. Hill's premises and also objected to the admission in evidence of the articles mentioned, upon the ground that the search, and seizure were unreasonable, illegal and void. The motion was denied and the objection overruled.
As concerns the search of Mrs. Hill's home the record shows that shortly after noon on April 24, 1964, one of the officers talked with Mrs. Hill at her place of employment concerning some guns that were in a trailer situate on her property. During this conversation Mrs. Hill was asked concerning the time of day she would be off work. After stating that the officers were parked in the area of her house when she got home from work on that day, she testified as follows:
'Q Now where were the officers parked, Mrs. Hill?
'A I believe they was parked just across the street from my house.
'Q Then after you got home did they come over to your house?
'A Yes. They did.
'Q Did you admit them to the house?
'A Yes. I did. I told them to come in.
'Q They weren't in the house when you got there?
'A No.
'Q Now then what happened after they got into the house?
'A Well, they said they was sorry they's have to look around.
'Q Did you consent to that?
'A I said, 'You all just as well go ahead.' I says, 'You'll get a warrant anyhow.' I says, 'I've got nothing to hide."
Under count IV of the information it is charged that:
'The said Dillard Junior Haggard did on April 16th or April 17th, 1964, willfully, unlawfully, intentionally, feloniously and burglariously enter in the night-time between 7:30 P.M., April 16, 1964, and 12:20 A.M. April 17, 1964, the home of George Foultz, which residence is in the possession of and under the control of George Foultz, with the intent to commit larceny, said premises being on Mink Creek, Bannock County, Idaho.'
In support of this count George B. Foltz testified that he and his wife left their home on Mink Creek Road between 7:00 and 7:30 P.M. on April 16, 1964, and returned about 12:30 A.M. April 17, 1964; that while they were gone during said period their home had been entered without permission and a number of articles had been taken therefrom. The witness identified a gun marked Exhibit G as being his gun which was taken from his home during that interval.
The record discloses that at 9:30 P.M. April 23, 1964, the defendant filed with the Pocatello Police Department a stolen car report, identified as Exhibit J, relative to his 1956 Ford automobile, green and white in color, bearing license plate No. 1B 18 978. Defendant's said automobile was found by Officer Kuta at approximately 11:00 A.M. April 24, 1964, in the 900 block of East Landers Street, in Pocatello, at which time the doors of the car were closed but not locked. Among the articles found by said officer in the car was a 38 caliber pistol identified as Exhibit G, which was on the floor boards under the floor mat on the driver's side of the front seat. At the officer's direction the car was taken to the sheriff's garage for the purpose of preserving evidence such as finger prints.
Defendant objected to the admission in evidence of Exhibit G upon the ground that no showing was made 'that a search of that car was made with the consent of the owner of the car or with the consent of the principal driver of the car, which is Mr. Haggard, the defendant in this action.' The objection was overruled.
Under count VI of the information the defendant is charged as follows:
'The said Dillard Junior Haggard did on April 23, 1964 between 6:40 and 8:40 P.M. of said day willfully, unlawfully, intentionally, feloniously and burglariously enter in the nighttime in the home of Rex Richardson, 130 East Bryan, Pocatello, Idaho, which residence is in the possession of and under the control of Rex Richardson, with the intent to commit larceny.'
As proof of this count, Edna Richardson, the wife of Rex Richardson, testified that her home at 130 East Bryan had been entered without permission between 6:35 P.M. and 8:45 P.M. on April 23, 1964; that upon returning home she saw footprints in the fresh snow leading away from her home; that a numnber of articles, mostly money, were at that time taken from her home. This witness identified a wallet (Exh. D), a red pouch (Exh. E) which when taken contained some church money, and a white pouch (Exh. F) which had contained about $50; that each of said exhibits belonged to her. The Exhibits D, E, and F were found in the defendant's automobile by Officer Kuta at the time he discovered defendant's car in the 900 block on East Landers Street in Pocatello after being reported as stolen (Exh. J), hereinbefore mentioned in our statement of facts relative to count IV.
The record shows that Exhibits D, E, and F were offered in evidence at the same time Exhibit G was being offered, and defendant made his objection thereto upon the same ground as he did relative to the admission of Exhibit G, which objection was overruled.
Appellant assigns as error the refusal to suppress the evidence consisting of the stolen property which he claims was obtained by unlawful searches and seizures in violation of his constitutional rights. Two searches are involved. We shall first consider the search of the house belonging to defendant's mother, where the fishing reel (Exh. C) was found. Appellant contends that implied coercion was used by the officers to gain entry to said premises.
Hereinbefore in this opinion we have quoted some of the testimony of Amy Hill which is pertinent to the question raised by this contention. In addition to such testimony the record discloses that Mrs. Hill had lived in her then home for about eleven years; on the occasion of the search she was with the officers in the basement of the home and in defendant's bedroom when and where they found the fishing reel (Exh. C) on the top of a wardrobe.
The record does show that earlier during that day one of the officers had secured Mrs. Hill's permission to look at a trailer house which was then parked in the driveway on her premises; the officer later returned to ask her if she knew that there were some guns in the trailer and also inquired of her at what time of the day she would get off from work. Mrs. Hill knew that the men who came to her home after she had quit work were officers and she voluntarily told them 'to come in.' There is not the slightest evidence indicating that any deception whatever was on that occasion practiced by any of the officers and it is clear from Mrs. Hill's testimony that she expressly assented to let the officers 'look around.' There is no evidence to support a contention that she was being deceived or coerced when she so consented.
It is true the defendant was not present at the time of the search nor did he consent thereto. However, there is no claim that Mrs. Hill was not the owner of the premises searched or that she did not exercise such dominion and control thereof as ordinarily obtains with regard to one's dwelling and the premises adjacent thereto. In State v. Dunn, 44 Idaho 636, 258 P....
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