State v. Hunley, 53170
Decision Date | 06 May 1969 |
Docket Number | No. 53170,53170 |
Citation | 167 N.W.2d 645 |
Parties | STATE of Iowa, Appellee, v. James Arthur HUNLEY, Appellant. |
Court | Iowa Supreme Court |
Hugh W. Lundy, Albia, for appellant.
Richard C. Turner, Atty. Gen., James C. Sell, Asst. Atty. Gen., and W. K. Cash, County Atty., for appellee.
Defendant has appealed following verdict of guilty of going armed with a knife with intent to use the same unlawfully (section 695.1, Code of Iowa) and judgment thereon).
The State served notice of appeal from a directed verdict dismissing a charge that defendant was a habitual criminal within the definition of section 747.5, Code of Iowa. The State's appeal has not been pursued and need not be considered except in relation to the current offense.
I. Following arrest, appointment of counsel, waiver of preliminary hearing and bind over to grand jury defendant was charged with going armed with a knife having a blade of three inches in length with intent to use the same unlawfully against the person of another.
The same information charged defendant as a habitual criminal in that he had twice before been convicted of a felony.
Defendant's demurrer was overruled.
Defendant's written brief and argument claims error for the reason the information charged two separate and distinct crimes in that the current charge was one and being a habitual criminal was a second charge contrary to section 773.36, Code of Iowa.
Section 773.36 provides that an indictment shall charge but one offense. Section 769.13 says that all provisions of law applicable to indictments shall as nearly as may be apply to informations. Defendant's complaint is without merit.
Section 769.6, Code of Iowa, provides:
The procedure followed in the case before us was in strict compliance with the statute. Defendant was charged with violation of section 695.1 and also charged with being a habitual criminal.
Supplemental information was filed and used. He was tried thereon. After conviction he was tried as a habitual criminal.
We have repeatedly held that a charge such as made here is not bad for duplicity. In State v. Eichler, 248 Iowa 1267, 1273, 83 N.W.2d 576, 579, we said:
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On page 1271 of 248 Iowa, on page 578 of 83 N.W.2d we quoted the Supreme Court of the United States in McDonald v. Massachusetts, 180 U.S. 311, 313, 21 S.Ct. 389, 390, 45 L.Ed. 542, as follows:
"The allegation of previous convictions is not a distinct charge of crimes, but is necessary to bring the case within the statute, and goes to the punishment only."
II. Defendant claims error in failing to sustain defendant's motions for directed verdict in that the State failed to sustain its obligation to show that defendant did go armed with any instrument with intent to use it unlawfully. The resolution of conflicts in the evidence was for the jury. The jury answered adversely to defendant. Our duty is to determine the sufficiency of the evidence to generate a jury question.
A brief review of the State's testimony will suffice.
Ronald Mock, an Albia policeman, had stopped at a highway intersection. A black car proceeded east at a high rate of speed. Mr. Mock pursued. The black car eventually stopped on the shoulder of the highway. Mr. Mock went to the car. He saw that defendant was the driver. A lady, later identified as defendant's wife, was in the front seat. A boy, later identified as defendant's stepson was in the back seat.
Mr. Mock told defendant to get out of the car, that he was under arrest for drunken driving. Defendant got out of the car and stood beside it for a brief period. Mr. Mock told defendant that a patrolman would be on the scene in a few minutes. (He had radioed for help.) Defendant got back in the car and tried to start it but could not.
We quote from the record of Mr. Mock's testimony:
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On redirect examination the policeman testified:
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A deputy sheriff arrived shortly after the patrolman. Defendant said his wife was ill; that she had an epileptic seizure. She was taken to the hospital to be checked.
We quote from the testimony of the patrolman:
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'The rescue unit came, but instead of taking Mrs. Hunley in the rescue unit, we placed Mr. Hunley on the...
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