State v. Hawkins
| Decision Date | 17 January 1973 |
| Docket Number | No. 55166,55166 |
| Citation | 203 N.W.2d 555 |
| Court | Iowa Supreme Court |
| Parties | STATE of Iowa, Appellee, v. Danny Eugene HAWKINS, Appellant. |
Korf, Diehl, Clayton & Cleverley, Newton, for appellant.
Richard C. Turner, Atty. Gen., Fred M. Haskins, Asst. Atty. Gen. and Dennis F. Chalupa, County Atty., for appellee.
Considered en banc.
The question is whether we should follow the rule announced in our majority opinion in State v. Everett, 157 N.W.2d 144 (Iowa 1968) or overrule that opinion and adopt the view expressed in the dissent. The majority in Everett held the offense of operating without consent under section 321.76, The Code, was not an include offense on a charge of larceny of motor vehicle under section 321.82, The Code. We overrule State v. Everett, supra, and reverse.
Defendant had been drinking on the evening of April 13, 1970 and also had taken phenobarbital tablets on the night in question. According to the State's evidence he left his companions and took a green 1959 Chevrolet belonging to Dale Altemier without his permission. Richard Hoffman, an officer with the Newton Police Department, thereafter observed the defendant driving the vehicle without his lights on. The officer turned on his red light and siren and pursued the weaving car until defendant drove over an embankment and into a ditch. Although defendant jumped out and ran away the officer was able to observe defendant and identified him at trial.
About an hour and a half later defendant rang the doorbell of the residence of Charles W. Larson, who resides in a nearby rural area. Defendant asked to come in to get warm. Larson offered to get him a warm place but defendant rightly suspected Larson of calling the police and fled. Officers were summoned and arrested the defendant nearby.
Defendant was convicted of larceny of motor vehicle in violation of section 321.82, The Code, which provides in material part:
'If any person steal, take and carry away, irrespective of value, any motor vehicle, he shall be punished * * * (as provided).'
The trial court refused over defendant's timely objections and in spite of his timely requests to instruct that defendant might be convicted of the included offense of operating without consent in violation of section 321.76, The Code, which provides in material part:
'If any * * * person shall without the consent of the owner take, or cause to be taken, any automobile or motor vehicle, and operate or drive, or cause the same to be operated or driven, he shall * * * (be punished as provided).'
I. Under the facts presented in this case it would have been impossible for defendant to commit the offense charged without a showing of each element necessary to convict him of the lesser offense. Under the rule announced by the majority in State v. Everett, supra, this would not make the lesser offense includable because situations, though not involved or presented in the case, can be imagined in which the major offense might be committed by means other than those which would constitute a commission of the lesser offense.
There would be no advantage in again detailing the views separately expressed in the majority and dissenting opinions in State v. Everett. We now believe and hold the dissenting opinion expresses the sounder view. The dissent rightly cites State v. Marshall, 206 Iowa 373, 220 N.W. 106, as authority for the proposition the evidence of the case must be considered in determining whether one offense is includable within another.
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Brainard v. State
...been guilty of the lesser offense of operating a motor vehicle without the owner's consent under Code § 321.76. Compare State v. Hawkins, 203 N.W.2d 555 (Iowa 1973) and State v. Everett, 157 N.W.2d 144 (Iowa 1968), with In re Champion, 221 N.W.2d 773 (Iowa 1974), filed September 18, 1974. T......
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Hall v. State
...Constitutional Limitations on the Lesser Included Offense Doctrine, 21 AM. CR. L.REV. 445, 449 (1984). 4. See, e.g., State v. Hawkins, 203 N.W.2d 555, 557 (Iowa 1973) (abandoning the strict statutory approach for an evidentiary-based 5. See Blair, supra note 3, at 449 (noting that the cogna......
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State v. Schminkey
...239 N.W.2d 171, 174 (Iowa 1976); State v. Everett, 157 N.W.2d 144, 146 (Iowa 1968), overruled on other grounds by State v. Hawkins, 203 N.W.2d 555, 556 (Iowa 1973); State v. Brightman, 252 Iowa 1278, 1284, 110 N.W.2d 315, 318 (1961); State v. Girdler, 251 Iowa 868, 873, 102 N.W.2d 877, 879 ......
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State v. Stewart
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