State v. Kittelson

• Decision Date: 14 January 1969
• Docket Number: No. 52889,52889
• Citation: 164 N.W.2d 157
• Parties: STATE of Iowa, Appellee, v. Carleton KITTELSON, Appellant.
• Court: Iowa Supreme Court

Page 157

164 N.W.2d 157

STATE of Iowa, Appellee, v. Carleton KITTELSON, Appellant.

No. 52889.

Supreme Court of Iowa.

Jan. 14, 1969.

Frank R. Miller, Decorah, for appellant.

Richard C. Turner, Atty. Gen., David A. Elderkin, Asst. Atty. Gen., and F. E. Sharp, County Atty., Elkader, for appellee.

BECKER, Justice.

On March 16, 1965 defendant was tried on county attorney's information charging larceny in the nighttime, Iowa Code, 1966, section 709.11, from the Huniker Garage in Monona, Iowa on August 23, 1964. Upon final submission the court also instructed on and submitted both the crime of larceny in an amount of more than $20 and of larceny in an amount of $20 or less, Code, sections 709.1 and 709.2. Larceny in the daytime, Code, section 709.5 was not submitted. The jury found defendant guilty of larceny in the nighttime. He was subsequently sentenced to ten years and committed to the Iowa State Penitentiary at Fort Madison.

After notice of appeal had been filed defendant's then attorney filed application to withdraw as attorney of record. This application was granted and defendant was given 30 days to obtain new counsel. No request was made for court-appointed counsel. Defendant did not get new counsel. The appeal was submitted to this court on clerk's transcript and affirmed by per curiam opinion dated January 11, 1966, Iowa, 139 N.W.2d 468. Subsequently, on petition for writ of habeas corpus, the district court for the first judicial district held defendant had been denied an appeal with a full record and ordered defendant returned to Clayton County for the purpose of granting defendant the right to appeal his March 24, 1965 conviction. The habeas corpus judgment was not appealed. This court then determined that under the peculiar circumstances of this case a delayed appeal would be granted.

Defendant's present court-appointed counsel assigns numerous grounds for reversal. Summarized, the State's evidence was as follows:

Winneshiek County Deputy Sheriff Melvin Lee testified he was on patrol duty on August 22, 1964. He had been notified defendant and Gordon Formaro were in the area. They were watching a truck belonging to Formaro which they found parked in Calmar, Iowa. He and Deputy Burreson watched the truck from about 1:45 A.M. to 3:45 A.M. when they saw a Dodge car coming through Calmar on Highway 52. They followed the Dodge with their lights out. The car proceeded normally out of Calmar but then speeded up to 80 or 90 miles per hour, turned onto a gravel road and started to zigzag. The deputies saw articles thrown from the right side of the car. They turned on their red light and the Dodge car stopped.

A man named Frank Varner was in the driver's seat, Gordon Formaro was in the right front seat and defendant was lying down on the back seat. Varner told the officers he had seen an automobile following him without lights and had tried to get away.

The officers called for help and a search was conducted. The search of the roadside that night produced three sacks of spark plugs, three cans of STP oil, a clamp wrench, a screw-driver, a punch and a hammer. Sometime after 6:15 A.M. a second search was conducted which produced a four and one-half foot heavy car axle, .22 caliber revolver, a pair of gloves with three nylon stockings stuffed in them, a small white cloth sack containing a five dollar bill, a one dollar bill, some change, a silver dollar and another spark plus. The car was not searched at that time.

The officers took the three men to the county jail and at 4:30 A.M. booked them on 'suspicion of burglary.' At 7:00 A.M. they were charged with littering the highway. Between 10:00 and 10:30 A.M. the officers were told that Huniker's Garage in Monona had been burglarized. They investigated, found the evidence of the breakin; a broken window, empty spark plug bins, an open safe and material strewn about the floor. Donald Huniker later identified the spark plugs, oil, the money bag and the 1923 silver dollar as his property, taken from his garage. Huniker said he had locked his garage about 5:00 P.M. on August 22 and did not discover the breakin until the next day.

Defendant's evidence consisted of the testimony of Gordon Formaro and himself. Each told of being together Saturday afternoon, August 15, 1964, driving Formaro's truck from Des Moines to Decorah where the truck developed mechanical trouble. They told of efforts to fix the truck during the following week and starting back to Des Moines on Saturday noon, August 22. The truck broke down in Calmar and they left that city. Frank Varner and defendant were using a Dodge automobile to travel with the truck at this time. The three men took the Dodge to get parts for the truck. They then went to defendant's mother's home where they spent the entire evening. Varner took the car, left 'to play some pool' and returned later in the evening. At about 2:30 A.M. Sunday morning they started for Des Moines.

Formaro said his license was restricted so he didn't want to pass any city police. He had seen 'an official car in Calmar'; when he saw the car following without lights he speeded up, woke up Varner and told him to switch drivers. At this time Varner reached under the seat, tossed a sack containing beer from the window and then switched places with Formaro. The latter action caused the zigzag motion of the car. Both Formaro and defendant testified they had never seen the sacks containing spark plugs nor any of the other articles found alongside the gravel road where he had been driving just before the car was stopped. Defendant said he did not see anything thrown from the car and had never seen the various exhibits. Formaro testified it took him approximately an hour and a half to drive the ten miles from Decorah to Calmar because 'he didn't know the road' and wasn't traveling very fast.

The case was submitted to the jury at 1:45 P.M. on March 24, 1965. During the course of deliberation the court instructed the jury as follows:

'Ladies and gentlemen of the jury: The bailiff has delivered to me a note signed by your foreman and reading as follows:

'If Kittelson did not take part in the actual theft but did help throw it out or did know about it afterward--would he be guilty of larceny or of larceny in the nighttime?

/s/ Leander Stroschein

Leander Stroschein, Foreman

'The court believes that all of the instructions necessary for your enlightenment in the consideration of this case have already been given you and that the court should not add to such instructions at this time.

'You are therefore instructed to return to the jury room, read the instructions carefully, consider the evidence further, and, if possible, arrive at a verdict.'

The jury retired for further deliberation and returned its verdict of guilty of larceny in the nighttime at 1:30 A.M. on March 25, 1965.

I. Defendant's first assignment of error is based on failure to direct a verdict in his favor at the close of the State's case and at the close of all of the evidence. The motion was renewed at the close of all of the evidence.

The assigned error raises the question of sufficiency of evidence to generate a jury question on the charge of larceny in the nighttime. Our chapter 709 deals with the subject of larceny and defines several crimes. Section 709.1 defines larceny as the stealing, taking or carrying away of any money, goods or chattels. Section 709.2 provides that when the value of the thing stolen exceeds $20 punishment shall be imprisonment in the penitentiary for not more than five years, or in the county jail for not exceeding one year, or by fine of not more than $1000, or both; when the value is less than $20 punishment shall be by imprisonment in the county jail not exceeding $30 days or by fine not exceeding $100.

Section 709.4 provides that if larceny is committed in the nighttime from any building, boat, motor vehicle or trailer when the value exceeds $20 the punishment shall be ten years in the penitentiary; if less than $20 punishment shall be by fine not exceeding $300 and imprisonment in the county jail not exceeding one year.

Section 709.5 provides for larceny in the daytime. Under that section the convicted defendant shall be punished by five years in prison if the value is over $20; and by fine of $200 and jail sentence not exceeding one year if the value is $20 or less.

It is apparent the time of day or night when the larceny occurs is an essential element of the crime authorizing the greater punishment. The court's instructions told the jury it was incumbent upon the State to prove beyond a reasonable doubt the taking from a building occurred during the nighttime.

The evidence of actual taking is circumstantial; i.e., the stolen goods were found at about 4:00 A.M. Sunday morning near where the occupants of the car were seen to have thrown articles out of the vehicle. From the evidence the Huniker Garage could have been entered at any time after 5:00 P.M. the previous Saturday afternoon. We take the judicial notice that there are several hours of daylight left after 5:00 P.M. on August 23rd.

Several rules germane to this appeal are found in State v. Daves, 259 Iowa 584, 585--586, 144 N.W.2d 879, 880, 'On a claim of insufficient evidence to support a conviction, we view the evidence in the light most favorable to the state. The finding of guilt by the trier of fact is binding on us unless we are satisfied it is without substantial support in the evidence or is clearly against the weight thereof. (cases cited).

'However, the state must prove all essential elements of the crime charged. (cases cited) * * * It is the sufficiency of the evidence connecting defendant with this crime which is challenged. To aid or abet means to assent to an act or to lend countenance or approval either by active participation in it or by some manner encouraging it. (cases cited.) Guilt of a person charged with aiding and abetting must be determined upon the facts...