State v. Hardesty

• Citation: 153 N.W.2d 464,261 Iowa 382
• Decision Date: 17 October 1967
• Docket Number: No. 52355,52355
• Parties: STATE of Iowa, Appellee, v. Worley Morton HARDESTY, Appellant.
• Court: United States State Supreme Court of Iowa

Page 464

153 N.W.2d 464

261 Iowa 382

STATE of Iowa, Appellee, v. Worley Morton HARDESTY, Appellant.

No. 52355.

Supreme Court of Iowa.

Oct. 17, 1967.

Rehearing Denied Dec. 13, 1967.

Alfred M. Pabst, Albia, for appellant.

Richard C. Turner, Atty. Gen., Wm. A. Claerhout, Asst. Atty. Gen., and W. K. Cash, County Atty., Albia, for appellee.

LARSON, Justice.

Pursuant to a reported theft of personal property from a vacant farmhouse in Monroe County, Iowa, a search warrant was directed against the defendant Worley Morton Hardesty on September 1, 1965. On the same date a search of defendant's home in Wapello County by a group of officers and the complainant revealed two articles which had been reported stolen on August 19, 1965. On October 1, 1965, the defendant was indicted by the Monroe County Grand Jury, accused of the crime of larceny, in violation of the provisions of section 709.1 of the 1962 Code, of one Hoover Electric Vacuum Cleaner and one Stewart Electric Shears, property of William E. Welsh, Jr., of a value of approximately thirty to thirty-five dollars. Defendant entered a plea of not guilty, and a trial to jury resulted in a verdict of guilty. He was sentenced to an indeterminate term in the State Penitentiary of not to exceed five years. He appeals.

Errors assigned upon which defendant relies for reversal are that the trial court erred (1) in admitting testimony of the peace officers present, when the search of defendant's premises occurred, relative to statements made by the defendant to them, when it did not appear that he was first warned that such statements might be used against him; (2) in allowing defendant to be asked if he had been convicted of a felony for impeachment purposes; (3) in admitting into evidence an item seized at the time of the search of his premises which was not included in the search warrant; (4) in admitting into evidence an item which was not in the same condition as when seized under the warrant; (5) in admitting improper evidence of the value of the clipper; (6) in refusing to reduce the charge to that of petty larceny; (7) in giving Instruction No. 11 charging the jury with the duty to determine the aggregate value of the stolen items rather than the value of each item separately; and (8) in giving Instruction No. 10 which did not conform to the period of time set forth in the indictment. He further contends under the whole record it appears that he failed to receive a fair and impartial trial.

At the trial Mr. Welsh identified the Hoover cleaner and the Stewart clipper found at defendant's residence on September 1, 1965, as the property taken from his locked farmhouse in Monroe County in August 1965. He testified he had, at the request of the Wapello County sheriff, met several officers at defendant's home on September 1st, that he found these items in plain sight in defendant's bedroom and claimed them as his property. He said that he had used the cleaner (Exhibit P-2) to clean up sawdust and plasterboard in the house he was remodeling, that when he was in the furniture business in Blakesburg, Iowa, in 1961 he purchased the cleaner from Baker's Music Store in Ottumwa, and that he purchased the clipper (Exhibit P-1) from Mr. Warner, an auctioneer, in Blakesburg in 1964.

Russell Watters Sheriff of Wapello County, had obtained a search warrant from the Municipal Court at Ottumwa and, together with his deputies and the sheriff and deputy of Monroe County, had entered defendant's home at about 10 P.M. on September 1st. He testified that defendant did not object to the search by the officers and Mr. Welsh, and indeed appeared to be a gracious host. Defendant did not object to the taking of these items by the officers at that time.

Sheriff Watters also testified that at the time of the search defendant claimed ownership of the property stating that he had had the sweeper for a long time and had purchased the clipper at a farm sale. Sheriff Bagley of Monroe County also testified that defendant said the clipper was his and that he had bought it at a farm sale sometime in the winter.

Sheriff Watters further testified he and Deputies Bard and Box examined the vacuum cleaner on September 2, 1965, and found a bag therein containing dust and wood fibers. They were placed in envelopes, marked Exhibits P-3 and P-4, and introduced into evidence.

Deputy Bard testified the search warrant called for Exhibit P-2 but not P-1, and that defendant told him he had had the clipper for some time and had used it.

Russell Warner, a farmer and auctioneer, testified that he purchased this clipper from one Thompson for $5.00 and had sold it to Mr. Welsh, and that although he had had no occasion to sell this type of clipper, he thought he knew its fair market value and placed it at from $5.00 to $12.00.

Harold Mick, operator of a furniture and appliance store in Albia and an authorized Hoover vacuum cleaner dealer, testified he was familiar with this model of cleaner and knew its market value in Albia in August 1965. He said it was worth at least $25.00.

Defendant testified he bought a clipper similar to Exhibit P-1 at a Roberts farm sale in early 1965 and paid around $2.00 for it and other items in a junk bucket. He said he tried it on sheep, but it was too dull and worn to use. He denied taking the Welsh clipper. He also testified the vacuum cleaner found in his home similar to Exhibit P-2 was bought in Des Moines in 1961 from the Parker Vacuum Cleaner Supply. His Exhibit D-3 was identified as a sales slip showing this purchase, and he explained the name difference on the sales slip by a certificate of the Clerk of Court in Story County (Exhibit D-4), dated in 1960, wherein his former name of McAllen had been changed to Hardesty. He said when the officers arrived he asked them to be quiet so as not to disturb the sleeping children and gave them a free run of the place. He admitted the items P-1 and P-2 were in full view and that he made no objections to their removal that night. He explained the cleaner's contents by saying he had used it to clean a house he had been remodeling. During cross-examination he admitted he had been convicted of a felony.

Mr. Peterson, an auctioneer who ran the Albia Sales Company, testified he thought the clipper P-1, if working, was worth $5.00, and if not, it was junk.

Mrs. Lyons, defendant's mother, testified defendant had the cleaner since 1961 and that she had seen defendant use this cleaner in the house he was remodeling. Defendant's wife testified she had observed both P-1 and P-2 in their home prior to going to the hospital in July 1965. She further testified her trip to a nearly town to get ractor gas for her husband was interrupted for three hours on the night of September 1st by highway patrolmen. They would not permit her and her children to return home until Sheriff Bagley arrived about 10 P.M., but she was present at home when the search warrant was read to her husband.

Mr. Rinehart, manager of the Gamble-Skogmo Store in Albia, testified that the fair value of Exhibit P-2, the vacuum cleaner, was about $10.00 to $15.00, and Mr. Klingensmith, an employee of the hospital at Knoxville who also sells vacuum cleaners, testified the value of Exhibit P-2 would not exceed $15.00.

In rebuttal, Mr. Dereu, manager for the Hoover Department of Baker's Music Store in Ottumwa, testified that Exhibit P-5 was the original record of the sale of this cleaner to the Blakesburg Furniture Company in October 1961. Mr. Murray, the assistant postmaster in Albia, testified the address on Exhibit D-3 (the sales slip) bearing zip code numbers of the seller indicated it was executed subsequent to July 1, 1963, when these numbers were first put into effect.

I. In his first proposition defendant contends that he was denied his constitutional rights as guaranteed by the Fifth and Sixth Amendments of the United States Constitution as applied to the states through the Fourteenth Amendment. He maintains that his Fifth Amendment right against self-incrimination was violated because he was not advised (1) that he had a right to remain silent, and (2) that anything he might say may be held against him. He further contends that his Sixth Amendment guarantee of right to counsel was violated because he was not advised (1) as to his right to counsel, and (2) that if he could not afford counsel he could have counsel appointed.

These complaints are based upon rules laid down in Miranda v. State of Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974. However, Miranda does not apply here because the trial preceded the Miranda decision. We have no occasion to consider whether any of those contentions in the Miranda decision was applicable.

II. Appellant next asserts it was prejudicial error to permit the county attorney to ask defendant if he had ever been convicted of a felony, and that permitting him to answer in the affirmative had the effect of denying him a fair trial and violated the provisions of Amendment 14, Section 1, of the United States Constitution. He cites O'Connor v. Ohio, 385 U.S. 92, 87 S.Ct. 252, 17 L.Ed.2d 189, and 382 U.S. 286, 86 S.Ct. 445, 15 L.Ed.2d 337; Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106; Miranda v. State of Arizona, supra, and Amendment 5 of the United States Constitution, as authority for his position.

This assignment raises an interesting constitutional question which to our knowledge has not been considered directly by the United States Supreme Court. In this state we have often held, in compliance with section 622.17 of the Code, such a question may be asked and answered for impeachment purposes under the rule that the test of admissibility is whether it has a legitimate bearing on points in issue. State v. Meeks, 245 Iowa 1231, 1243, 65 N.W.2d 76, and cases cited. As bearing on this question, also see State v. Frink, 255 Iowa 59, 68, 120 N.W.2d 432.

In any event, the record...