State v. Leitzke

• Decision Date: 03 April 1928
• Docket Number: No. 38489.,38489.
• Citation: 218 N.W. 936,206 Iowa 365
• Parties: STATE v. LEITZKE.
• Court: Iowa Supreme Court

206 Iowa 365

218 N.W. 936

STATE

v.LEITZKE.

No. 38489.

Supreme Court of Iowa.

April 3, 1928.

Appeal from District Court, Pottawattamie County; H. J. Mantz, Judge.

The defendant was indicted for stealing two hogs valued at more than $20. Upon submission of the cause to the jury, he was convicted, and appeals therefrom. Affirmed.Robertson & Robertson, of Council Bluffs, for appellant.

John Fletcher, Atty. Gen., Neill Garrett, Asst. Atty. Gen., and Frank E. Northrop, Co. Atty., of Council Bluffs, for the State.

KINDIG, J.

On October 1, 1926, Adolph Leitzke, the defendant appellant, assisted by John and Ed Stewart, stole two shoats belonging to, and on the farm of, Frank Hadfield, near Neola. These men killed the animals, put them into a Ford roadster, and hauled the carcasses to appellant's home, about three miles away, where the process of butchering was completed. Then, during the following day, the dressed hogs were offered to a Mr. Owens, at Neola, in payment of a garage bill. This tender was refused. Immediately thereafter arrests were made. John Stewart pleaded guilty, and was sentenced to the Reformatory at Anamosa, while Ed was not prosecuted.

There is an abundance of evidence to prove the theft. No question is raised concerning that, but the controversy is waged over the proposition as to whether or not the punishment should be for grand or petit larceny. Fifty assignments of error are made by appellant. However, we have carefully considered all of them, but think it necessary to discuss only six thereof.

[1] I. At the outset, it is claimed that there must be a reversal of the district court's judgment, because, during the opening statement of facts to the jury, appellant's counsel admitted for him “every charge in the indictment except the allegation concerning the value of the property.” Notwithstanding this, it is asserted the state was allowed to prove, over objections, each and every detail of the offense. Reliance at this juncture is made upon the following decisions of this court: State v. Strum, 184 Iowa, 1165, 169 N. W. 373, and State v. Vance, 119 Iowa, 685, 94 N. W. 204. Involved in the Strum and Vance Cases were situations where it was material to show that the act of the defendant was performed designedly and knowingly, as distinguished from accidentally or unintentionally, through inadvertence, so that the only purpose of proving other and different previous criminal acts of the defendant was to indicate the design and knowledge. Such prerequisite having been admitted by the defendant, it was said by us there that the subject-matter became immaterial, and its introduction thereafter could only result in unnecessary prejudice, while, in the case at bar, the testimony offered did not relate to dissimilar and different crimes, but was a mere recitation of the instances, happenings, and steps taken leading up to and completing the elements of the particular transgression for which appellant was being tried. It is plain to be seen that there is a fundamental distinction between this state of affairs and that concerned in the authorities cited.

Thus, when, as in this proceeding, the appellant, as defendant, admitted certain truths constituting the factors of the “larceny,” no harm could come to him because witnesses told the specific movements and actions embodied in the “admission,” as well as other acts and circumstances adding to the proof of the offense (State v. Gaskill, 200 Iowa, 644, 204 N. W. 213), for in making these declarations the testifiers said no more than appellant himself has admitted. That is quite different from injecting into the record, for the purpose of showing “knowledge and design,” the stories of many and various crimes of which the defendant has not acknowledged the commission.

Moreover, the rule announced in State v. Strum and State v. Vance, supra, was expressly overruled by us in State v. Kappen, 191 Iowa, 19, 180 N. W. 307. In the Kappen Case it is said:

“We deem it proper to say that we do not wish to be understood as reaffirming or approving our holding in the Strum Case, 184 Iowa, 1165 , and in State v. Vance, 119 Iowa, 685 , preceding it, in so far as the same requires the state, in its prosecution, to accept the hypothetical admission of a defendant in lieu of evidence otherwise admissible. * * * No admission should be deemed to control the sound discretion of the court to permit evidence otherwise admissible. Much less should a hypothetical admission have such effect. The effect of our holding in the cited cases was to permit the defendant, in effect, to control the state's method of proof by basing admission upon a mere hypothesis, without committing himself to a direct confession of guilt. * * *”

Consistently, our language in Henderson v. Ball, 193 Iowa, 812, 186 N. W. 668, is to the following effect:

“It is the contention of appellee that this allegation or admission [in reference to design and knowledge] has the effect to render immaterial and inadmissible any evidence to prove fraudulent intent. That there is one decision, and perhaps two, by this court in the past, affording some support for this argument, may be admitted; but those precedents have since been expressly disapproved and overruled. See State v. Kappen, 191 Iowa, 19 . A hypothetical admission of that nature will not preclude the other party from proving the wrongful intent in the usual manner by other competent testimony.”

Some doubt appears as to whether or not the “admission” claimed by appellant was made into the record as such. Nevertheless, conceding that it was properly offered and recorded, we are of the opinion that appellant by thus doing cannot control the discretion of the trial court in the “admission” of evidence. State v. Kappen and Henderson v. Ball, supra. Throughout the trial, appellant was entitled to the benefits from the presumption of innocence, and it was at all times necessary for the state to prove him guilty beyond a reasonable doubt. His declarations and “admissions,” of course, could be considered against him by the jury, but, until he pleaded guilty, there was due him the “presumption of innocence,” and the burden remained upon the state to furnish the required “proof.” Even though the court, in the exercise of its “discretion,” may assume the truth of a fact fully admitted by both the state and the defendant (State v. Graves, 192 Iowa, 623, 185 N. W. 78), yet the judicial “discretion” in that regard cannot be controlled by the accused. Otherwise the state at times would be unduly handicapped in meeting the “burden of proof” cast upon it.

We find appellant was not prejudiced by the trial court's procedure.

[2] II. Complaint is interposed concerning the method adopted by the state in placing a value upon the personalty taken. The materiality of this proposition is due to section 13006 of the 1924 Code, which reads:

“When the value of the property stolen exceeds twenty dollars, he [the defendant] shall be punished by imprisonment in the penitentiary not more than five years, or in the county jail not more than one year, or by fine of not more than one thousand dollars, or by both such fine and imprisonment; when the value does not exceed twenty dollars, by fine not exceeding one hundred dollars, or imprisonment in the county jail not exceeding thirty days.”

Appellant insists that the “value” is to be determined by the live stock market at Omaha, Neb., on the day in question, while the state's witnesses based their opinions upon the “market” at Neola. More specifically, the exact point made by appellant is that the alleged demand for hogs of this size at Neola was among farmers or feeders only, and therefore a “market” did not arise. Four “witnesses” testified for the state concerning the “value.” They were stockmen and feeders with long experience. According to their unqualified assertions, there was a “market” among farmers in Neola and vicinity for light hogs similar to those in controversy. Said “market,” they steadfastly maintained, was ready and constant, and upon this the opinions were founded. Rather conclusively it seems to have been shown that the worth of the stolen chattels was the amount claimed by the state, for the criterion forming the standard urged by appellant relates rather to heavy and fat hogs, while those in controversy were small, not fit to be killed, but suitable for feeding purposes.

Sufficient support, at least, appeared in the record to warrant the jury in determining the conflict in favor of the state's contention.

[3] III. Grievance is grounded upon the theory that the state improperly, and over appellant's objection, asked the “witness” John Stewart a question which compelled him to answer whether or not he was at the time of the trial in the Men's Reformatory, at Anamosa, because, it is said, in so doing, the state revealed to the...