State v. Miller

• Decision Date: 03 May 1966
• Docket Number: No. 51889,51889
• Citation: 142 N.W.2d 394,259 Iowa 188
• Parties: STATE of Iowa, Appellant, v. Dan Kurtsinger MILLER, Appellee.
• Court: Iowa Supreme Court

Page 394

142 N.W.2d 394

259 Iowa 188

STATE of Iowa, Appellant, v. Dan Kurtsinger MILLER, Appellee.

No. 51889.

Supreme Court of Iowa.

May 3, 1966.

Rehearing Denied July 13, 1966.

Lawrence Scalise, Atty. Gen., and David P. Miller, County Atty., for appellant.

Dennis J. Britt, Davenport, for appellee.

SNELL, Justice.

This case is before us following a conviction of murder in the second degree. The state appealed from adverse rulings excluding evidence. Defendant appealed from all adverse rulings and the final judgment. The state's appeal is important only in the event of remand for new trial. We will first consider defendant's appeal.

On February 23, 1965 there was filed an Information charging defendant with the crime of murder committed on or about the 31st of October 1965.

To this information defendant demurred on the ground no offense was alleged in that the date of the alleged offense was impossible.

The demurrer was sustained. A new information was then filed alleging October 31, 1964 as the date of the offense. To this information defendant entered a plea of former acquittal. The plea was overruled. Upon agreement of the court, and all parties that the right to raise the question on appeal would not be jeopardized, the defendant entered a plea of not guilty.

1. The second information against defendant, after the demurrer to the first information was sustained because it referred to an impossible date, did not place defendant in double jeopardy contrary to Article I, section 12, Constitution of the State of Iowa. See State v. Smith, 88 Iowa 178, 55 N.W. 198.

The first information referred to a date that had not yet arrived. The defect was clearly a typographical error. It could have been corrected by amendment. Sections 773.42 and 773.43, Code 1962. It did not contain matter which is a legal defense or bar to indictment or information requiring discharge of defendant under code section 777.8.

The sustaining of the demurrer did not constitute a final judgment of the charge against defendant.

II. Code section 777.9 provides the court may order resubmission to a grand jury when a demurrer to an indictment has been sustained.

Defendant argues the second information was not ordered by the court, there was no compliance with the statute and consequently further prosecution was without authority.

We do not agree. Here the charge was by information, not by indictment. The defendant's contention is answered in State v. Hartung, 239 Iowa 414, 30 N.W.2d 491:

'Manifestly section 777.9 cannot apply when demurrer to a county attorney's information is sustained. If the original charge is not by indictment it cannot be 'resubmitted to the same or another grand jury.' But it is also clear that if such demurrer goes to matters that can be obviated by a new information or by amendment to the original information it is not the intention or spirit of the statute that the defendant shall escape trial.' (loc. cit. 422, 30 N.W.2d 496.)

III. It was established by the evidence and admitted by defendant that the victim, whose death resulted in the charge against defendant, died of a gunshot wound.

Defendant assigns error in that the trial court admitted three color photographs of decedent's dead body. The prosecution did not claim defendant fired the fatal shot or was present when it was fired. It claimed he aided and abetted the murder and was subject to prosecution under code section 688.1. In this situation defendant contends the three colored photographs would serve no useful purpose, i.e., they were irrelevant. Photographs are admissible in criminal prosecutions where proper foundation has been laid. State v. Estrella, Iowa, 133 N.W.2d 97, 100; State v. McClain, 256 Iowa 175, 183, 125 N.W.2d 764. The photographs were corroborative of what the witnesses had described and would ordinarily be admissible. Admission of the photographs here complained of did not constitute reversible error. See State v. Heinz, 223 Iowa 1241, 275 N.W. 10, 114 A.L.R. 959.

IV. Decedent, Walter Adams, was found in a dying condition in an alley in Davenport, Iowa about 10:15 p.m. Subsequent autopsy indicated he had been shot through the heart with a .22 caliber bullet. His truck was parked nearby. His brother, a fireman, was called to the scene. A search of the body and the truck was made but the keys to the truck were missing.

The state at trial claimed defendant aided and abetted one Sharon Hildebrand who allegedly did fire the fatal shot.

State's evidence disclosed this defendant had been employed by decedent, Adams, during August, September and October. Prior to October 30, 1964, defendant had been living in Clinton, Iowa. His landlady, Mrs. Betty Ann Collier, testified Miller lived there with Sharon Miller (also identified as Sharon Hildebrand), 'supposedly his wife'; he was employed by decedent at the time he was living in Clinton; Adams paid the rent on the apartment.

On October 30th defendant and Sharon vacated the apartment in Clinton. They spent the night in a motel and the next morning proceeded by bus to Davenport, arriving in the afternoon. Later the same afternoon Sharon Hildebrand, in company with defendant, purchased a cheap Rohm .22 caliber pistol and bullets at a pawn shop in Davenport using defendant Miller's driver's license for identification. The address of the vacated Clinton apartment was given at the time purchase was made. Defendant and Sharon subsequently registered at a hotel in downtown Davenport.

On the night of the fatal shooting decedent was with an employee, Gene Dynes, at his home in Davenport at approximately 9:00 p.m. His sister took a phone call for him, identified a woman's voice and called him to the phone. He talked on the phone a few minutes. After the phone call his manner appeared normal. He stopped to say something to his father. At that time he appeared somewhat nervous, spoke to his sister, made another phone call and then left the house. He was next observed in a dying condition in the alley in downtown Davenport.

The immediate police investigation, coupled with the Federal Bureau of Investigation technical analysis, disclosed decedent had a bruise on his right arm just above the elbow which the physician thought was caused by a bite. The bullet recovered from the body had markings sufficient to identify it as having been fired by a cheap foreign make revolver, but insufficient to allow positive identification of the make of the revolver or the identical weapon from which the bullet had been fired. Cortland Cunningham, examining expert from the F.B.I., stated the bullet could have been fired from any one of 500,000 guns now in the United States, including a Rohm .22 caliber weapon. The area around the bullet hole in the clothing was microscopically examined and chemically tested for the presence of gunpowder residue. None was found.

On November 3, three days after the killing, defendant Miller was arrested in Louisville, Kentucky while driving the 1953 Ford pickup truck owned by decedent, as the result of a report the vehicle had been stolen. Sharon (Miller) Hildebrand was arrested in Louisville shortly thereafter. They were returned to Davenport November 6, 1964.

Much of the additional testimony connecting defendant with this crime, admitted by the trial court and about which controversy revolves, was given by Detective Sergeant Iversen over objection by defense counsel. It consisted of recitation of two oral statements taken from defendant November 6, 1964. The two stories varied in several details. The time lapses between the taking of the statements is not shown.

First, defendant Miller told Detective Iversen he and Sharon came to Davenport from Clinton via bus on October 31, arriving at about 2:00 p.m. They walked around and did some shopping, ate at a local restaurant and went to a show. After the show they viewed the Halloween parade, and after the parade went to a tavern where he had a couple of beers but Sharon did not drink. He stated that at no time during the day did Sharon use the telephone in his presence. After leaving the tavern they walked down the street and subsequently made their way to another tavern which was about to close as it was then 11:45 p.m. They went to the bus depot to see about buying tickets for Kentucky, his home state. As he came out of the tavern he observed Walter Adams' truck which was parked parallel to the alley alongside the Central Fire Station, headed north. He then left Sharon at the bus depot, went to see some person named Gamble, failed to locate him and returned to Sharon at the bus station. He went out and got the truck. The keys were in the truck at that time and there was a man coming down the alley, carrying a bag. He picked up Sharon, they rode around a while and finally decided to go to Kentucky. He tried to talk Sharon out of it because of her condition, but she said she would go anyway or would follow him.

In the second statement defendant told Detective Iversen about leaving Clinton, staying in a motel overnight on October 30, coming to Davenport by bus, shopping in Davenport and then going to a pawn shop where Sharon purchased a revolver and bullets. He showed his driver's license to the man who sold the gun to Sharon and took the gun and bullets into his possession after they left the loan company. They then went to a show, later had a beer and then registered at the Columbia Hotel, went up to their room where they stayed a while. Later they came to the Griddle Restaurant. While at this restaurant Sharon borrowed a dime from him and made a phone call. He overheard Sharon say over the telephone: 'Is Walt there.' He went out to the street where he subsequently talked to Sharon who stated: 'I'm sorry. We have to go down--I've got to meet Walt in front of the ABC Pool Hall, but I told Walt you weren't going to be around.' Then he walked to the ABC Pool Hall with Sharon and continued down the street alone. While he...