State v. One (1) Certain 1969 Ford Van, V. I. N.-E15AHD98177, 54731

• Decision Date: 11 November 1971
• Docket Number: No. 54731,54731
• Citation: 191 N.W.2d 662
• Court: Iowa Supreme Court
• Parties: STATE of Iowa, Appellee, v. ONE (1) CERTAIN 1969 FORD VAN, blue in color, Style--Super Van, V.I.N.--E15AHD98177, Appellant.

Page 662

191 N.W.2d 662

STATE of Iowa, Appellee, v. ONE (1) CERTAIN 1969 FORD VAN, blue in color, Style--Super Van, V.I.N.--E15AHD98177, Appellant.

No. 54731.

Supreme Court of Iowa.

Nov. 11, 1971.

Darold J. Jack, Oelwein, for intervening claimant-appellant.

Richard C. Turner, Atty. Gen., William W. Garrettson, Asst. Atty. Gen., J. G. Johnson, Asst. County Atty., Oelwein, for appellee.

REES, Justice.

The action involved here arises under the provisions of chapter 127, The Code 1966, for the forfeiture to the State of a 1969 Ford Van, the property of Car and Truck Rentals of Madison, Inc., the intervening claimant here. The vehicle was seized by law officers of the State of Iowa on August 2, 1970 while in the possession of one Arthur Phillip Penn, III, and which when seized contained a quantity of narcotic drugs, in violation of section 204.2, The Code 1966. The vehicle in question is a rental truck, and had been leased by Arthur Phillip Penn, III, from its owner at the owner's place of business in Madison, Wisconsin. Trial court held the presumption arising under section 127.11(4), The Code 1966, that the vehicle when seized was employed in the transportation or conveyance of narcotic drugs with the consent of the owner was not overcome by the testimony and evidence of the claimant-owner and entered a judgment of forfeiture. The claimant-owner appeals. We reverse the trial court.

The intervening claimant, Car and Truck Rentals of Madison, Inc., is a rental office connected with Kaiser, Inc., a Ford dealer in Madison, Wisconsin. On the afternoon of July 31, 1970, Arthur Phillip Penn, III, came to the office of claimant and requested the rental of the truck for a few hours, indicating he was intending to use it in moving some things in Madison. Two employees of claimant were on duty: a clerk and the office manager. Upon Penn's request for the rental of the truck, the clerk required him to display his driver's license, which he did, and also asked him for credit cards, which he was unable to furnish. She then asked him for a local reference. He gave his mother's name, who, it developed, was known to the clerk. She did not inquire as to whether he had a record of driving infractions or a criminal record, although it developed that in 1964 Penn had been convicted of the crimes of operating a motor vehicle without owner's consent, and forgery, and as a result of convictions in such matters he was sentenced to a three-year term in the Wisconsin penitentiary. He had no reputation or record for having used or been involved in traffic in illegal liquors or drugs.

On August 2, 1970 officers of the State of Iowa seized the rented vehicle which was in the possession of Penn, who was attending a rock festival at Wadena, and against whom charges were brought by the State for illegal possession of narcotics, stimulants and depressant drugs, of carrying a concealed weapon, and for illegal possession and transportation of alcoholic liquor. Subsequently the information seeking the forfeiture of the vehicle was filed in the District Court, trial was had and the decree of the court adjudicating forfeiture was entered. The showing made by the State that the vehicle had been employed in the transportation of narcotic drugs was abundant and uncontradicted, and the claimant's ownership of the vehicle was stipulated. The only question left for the determination by the trial court was whether the claimant-owner of the vehicle had overcome the presumption arising under section 127.11(4), The Code 1966. As above stated, this question was determined adversely to the claimant.

The claimant now assigns as error:

(1) The court's conclusion claimant had failed to overcome the statutory presumption that the conveyance in question was, when seized, employed with the knowledge and consent of the claimant in the unlawful transportation of the drug involved.

(2) The trial court's holding as a matter of law that the knowledge of the two employees of the claimant corporation, they being the only persons connected with the corporation who had any contact with the rental transaction in question, was not the knowledge of the corporation.

(3) The judgment of forfeiture, based on the trial court's finding that no witness, either officer of the corporation or otherwise, testified as to lack of knowledge on the part of the corporation is contrary to the evidence, and that the judgment of forfeiture is not sustained by sufficient evidence.

(4) The trial court's judgment of forfeiture is contrary to law.

I. The trial of an action of this character 'shall be by the court'; section 127.11(5), The Code 1966. It is a special proceeding and is not triable in this court de novo. State ex rel. Stansberry v. Wilson, 212 Iowa 1341, 1343, 237 N.W. 511, 512. Although our conclusion on the evidence may differ from that of the trial court, we would not reverse except where the evidence is so utterly wanting to support the conclusion of the trial court that it cannot be sustained. State v. One Certain Ford Coupe Automobile, 205 Iowa 597, 601, 218 N.W. 346, 348.

II. While the statutory procedure for the seizure and forfeiture of conveyances is set out in chapter 127, The Code 1966, the matter before us now arises by virtue of the provisions of section 204.11(3), The Code, which provides in pertinent part:

'Any automobile or other vehicle used, or intended to be used, to conceal, convey, carry, or transport in violation of this chapter any of the drugs defined in section 204.1, or any automobile or vehicle in which any of the drugs defined in said section are unlawfully possessed by an occupant With the knowledge of the owner thereof, shall be forfeited to the state, under the provisions of chapter 127.' (italics supplied)

The requirement of Knowledge does not appear in chapter 127 or any of the provisions thereof, except that section 127.11(4) provides,

'Presumption. ...