State v. Jackson, 49758

CourtUnited States State Supreme Court of Iowa
Writing for the CourtTHOMPSON
Citation251 Iowa 537,101 N.W.2d 731
PartiesSTATE of Iowa, Appellee, v. Larry D. JACKSON, Appellant.
Docket NumberNo. 49758,49758
Decision Date08 March 1960

Don H. Jackson and Addison C. Kistle, Council Bluffs, for appellant.

Norman A. Erbe, Atty. Gen., Marion R. Neeley, Asst. Atty. Gen., and Matt Walsh, County Atty. of Pottawattamie County, Council Bluffs, for appellee.

THOMPSON, Justice.

The defendant is a Negro, 36 years of age at the time of the events referred to herein. On the evening of July 13, 1958 Joseph Dixon, aged 18, and Rita Jean Ficke, 15, were seated in an automobile bearing dealer's license plates, near Carter Lake. They had driven around Omaha for a time, and about 9:30 parked on a road near the lake. Carter Lake, although lying on the west side of the Missouri River adjacent to Omaha, is a part of the State of Iowa and for governmental purposes of Pottawattamie County.

After Dixon and Miss Ficke had been parked for about 45 minutes, the defendant appeared, climbed into the back seat of their car, displayed a gun described in the record as a police positive revolver, .38 caliber, and told them it was a 'stickup' and no joke. He ordered Dixon to keep his hands on the wheel and to start driving. Miss Ficke testified the defendant used much foul language and told them they would 'be lucky to get out alive.' After Dixon had driven a short distance the car became mired in a mud hole and he could not get it out.

The defendant then ordered them out of the car and to 'shut up and keep walking.' Miss Ficke testified 'he said he was going to kill us.' He said that several times. After they had walked for some distance, the defendant said that was far enough. He put his left hand on Miss Ficke's shoulder and said 'You are coming with me.' Dixon at this point said 'Don't touch her, I'll kill you.' Dixon was about nine or ten feet from the defendant at this time, and according to Miss Ficke the defendant then 'fired the first shot'. Dixon thereupon charged him, and they fell to the ground. During the melee another shot was fired. Miss Ficke then 'yelled that somebody was coming' and the defendant got up and ran. It was then discovered that Dixon was shot; the evidence showing that the bullet entered his back, coursing through his chest and causing his death within a short time, perhaps within an hour and certainly from the effects of the gunshot wound in his back.

The defendant had driven to the scene of the tragedy in an automobile which he owned, and it was found parked near the Dixon car. His confession which is not challenged as to being voluntary and his testimony in the case both say that he was attempting to get a car which he could drive to Chicago, his own not being operable for a trip of that distance. Through his abandoned automobile the defendant was shortly traced and apprehended. There was much other evidence connecting him with the crime, and his own confession and testimony admit the attempt to steal the Dixon car and the events which transpired, much as does Miss Ficke. He denies the use of threats or foul language or any order to Miss Ficke to leave the scene with him, and says he had no intent to shoot Dixon, claiming the discharge of the revolver to have been an accident during the course of the scuffle with the deceased. Other facts in evidence will be referred to in the course of the opinion following. Since the defendant's assigned and argued errors, except those referring to the claimed erroneous sentence, deal with what are claimed to be lack of evidence in the state's case, we follow the rule that we take the facts most favorable to the state; that is, in his contention that there is no support for the verdict and judgment, we look for substantial evidence, whether or not contradicted by the defense. The trial court submitted the case to the jury in accordance with the indictment; and in so doing submitted murder in the first degree, murder in the second degree, manslaughter, and not guilty. The jury returned a verdict of murder in the second degree. The court entered judgment on the verdict, and sentenced the defendant to imprisonment in the state penitentiary for a period not to exceed seventy years.

I. The defendant assigns eight errors relied upon for reversal. One of these is that the court was in error in sentencing him under the indeterminate sentence law, and the sentence is excessive. This contention will be discussed in a later division of this opinion. The other assignments may be summed up in these statements: The court erred in submitting first degree murder; and submission of first degree murder, when the evidence does not warrant a finding thereof is reversible error, even though the conviction be for a lesser offense. Since we do not agree with the first contention, we do not find it necessary to determine the second one.

II. Defendant's theory that submission of first degree murder was not permitted by the record in the case is based upon the apparent claim that the evidence does not show a willful, deliberate and premeditated killing; nor does it raise a jury question that the killing was committed in the perpetration or attempt to perpetrate any arson, rape, robbery, mayhem or burglary. It is the state's contention that Joseph Dixon was killed in the perpetration of a robbery or at least in an attempt to commit a robbery. But the defendant here turns to the statutory definition of robbery, and contends that the stealing of an automobile is not larceny under the Iowa statute, and so no robbery or attempt to commit robbery was committed. The statutes defining murder in the first degree and robbery are important here, and we set them out. Murder of the first degree is defined in Code, § 690.2, I.C.A., as follows: 'First degree murder. All murder which is perpetrated by means of poison, or lying in wait, or any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration or attempt to perpetrate any arson, rape, robbery, mayhem, or burglary, is murder in the first degree, and shall be punished with death, or imprisonment for life at hard labor in the penitentiary, as determined by the jury, or by the court if the defendant pleads guilty.' Robbery is defined in these terms, in Code, § 711.1, I.C.A.: 'Definition--punishment. If any person, with force or violence, or by putting in fear, steal and take from the person of another any property that is the subject of larceny, he is guilty of robbery, and shall be punished according to the aggravation of the offense, as is provided in sections 711.2 and 711.3.'

III. Defendant's first argument is that there is no sufficient showing that the automobile which the defendant was attempting to take from Joseph Dixon was either owned by him, or was in his lawful possession. It is conceded that ownership is not necessary; larceny is committed by a wrongful taking from one who has rightful possession. State v. Schmidt, 239 Iowa 440, 442, 30 N.W.2d 473, 474; State v. Henderson, 215 Iowa 276, 279, 243 N.W. 289, 290; State v. Stanley, 48 Iowa 221, 222. Admitting this, the defendant urges that there is no evidence the car was rightfully in Dixon's possession.

But the witness Ficke said the car was 'Joseph's.' In addition, it is well settled that 'a rebuttable presumption exists that those in possession of property are rightly in possession.' 73 C.J.S. Property § 17, p. 211; Myerscough v. Garrett, Tex.Civ.App., 45 S.W.2d 1003, 1005; Swanstrom v. Bell, 67 Idaho 554, 186 P.2d 876, 878; In re James' Estate, 267 Wis. 105, 65 N.W.2d 9, 17. There is no showing that the car was not rightfully in Dixon's possession, and accordingly the presumption governs.

IV. It is the further contention of the defendant that the unlawful taking of an automobile is not larceny within the meaning of our statutes, and so it follows that the taking of such an article of personalty with force and violence is not robbery as defined by Section 711.1, supra. That is to say, an automobile is not the 'subject of larceny'. So it is defendant's thought that he was not engaged in the commission of a robbery or an attempt to commit a robbery, and thus not guilty of murder in the first degree in the absence of a showing of an intent to kill.

But we think, and so hold, that an automobile may be the subject of larceny. It is true that we have a separate statute providing for the punishment of one who steals an automobile. Section 321.82 of the Code, I.C.A., labelled, presumably by the Code Editor, 'Larceny of a motor vehicle,' says: 'If any person steal, take and carry away, irrespective of value, any motor vehicle, he shall be punished by imprisonment in the penitentiary not more than ten years, or by fine of not more than one thousand dollars, or by both such fine and imprisonment.' Code, § 709.1, I.C.A. so far as material, provides. 'If any person steal, take, and carry away of the property of another any money, goods, or chattels * * * he is guilty of larceny.' This is the general larceny statute; and in the absence of Section 321.82, supra, there could be no doubt that it would include motor vehicles as the subject of larceny.

We think that Section 321.82 does no more than specify a separate penalty for the larceny of a motor vehicle. Both Sections 709.1 and 321.82 refer to and make the gist of the crime the stealing, taking, and carrying away of the personal property of another. In State v. Schmidt, supra, at page 442 of 239 Iowa, at page 474 of 30 N.W.2d we gave with approval this definition of larceny from State v. Banoch, 193 Iowa 851, 853, 186 N.W. 436, 437: Larceny is 'the wrongful taking and carrying away by a person of the personal property of another from any place, with a felonious intent to convert it to the taker's own use without the consent of the owner.' The act of the defendant here in taking charge of the automobile then in the possession of Joseph Dixon comes exactly within this definition. He...

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