State v. Poffenbarger

• Decision Date: 14 January 1958
• Docket Number: No. 49206,49206
• Citation: State v. Poffenbarger, 249 Iowa 480, 87 N.W.2d 441 (Iowa 1958)
• Parties: STATE of Iowa, Appellee. v. Edward Austin POFFENBARGER, Appellant.
• Court: Iowa Supreme Court

Page 441

87 N.W.2d 441

249 Iowa 480

STATE of Iowa, Appellee. v. Edward Austin POFFENBARGER, Appellant.

No. 49206.

Supreme Court of Iowa.

Jan. 14, 1958.

Tacy & Woolsey, of Council Bluffs, for appellant.

Norman A. Erbe, Attorney General, Freeman L. Forrest, Asst. Atty. Gen., Hugh V. Faulkner, Asst. Atty. Gen., Ray Hanrahan, County Atty. and J. P. Denato, Asst. County Atty., Des Moines, for appellee.

OLIVER, Justice.

Defendant was indicted for robbery with aggravation as defined in sections 711.1 and 711.2, Code of Iowa 1954, I.C.A., it being charged he robbed Everett Larson of the Hilltop Super Valu Grocery store, in Des Moines, armed with a dangerous weapon, with intent, if resisted, to kill or maim the said Larson. Trial resulted in his conviction and this appeal.

Mr. Larson managed the grocery. After closing it, at about 9:30 p.m., June 15, 1956, he and two employees were accosted by two men, identified by Larson and the employees as defendant and one Turk. The men pointed pistols at the three and threatened to kill them. At gunpoint Larson was compelled to unlock the store and safe, and approximately $2,000 in money was taken by the robbers who then drove away in an automobile.

A few minutes later Des Moines police came upon an automobile answering the description of the car used by the robbers, parked in a private road. Two men occupied the front seat. When the officers challenged the parked car and called out that they were police officers, the car sped away, followed by the police car. The pursuit continued until the fleeting automobile overturned. Defendant ran from the wrecked car under fire of the officers, and was captured, hiding in nearby weeds. The money taken from the store was found in the car. The following morning a bag containing two automatic pistols, with clips and cartridges, was found in the weeds beside the road at the place where the parked automobile started its flight from the police.

I. Section 785.4, Code of Iowa 1954, I.C.A., provides:

'Where there is a reasonable doubt of the degree of the offense of which the defendant is proven to be guilty, he shall only be convicted of the lower degree.'

Defendant assigns as error the failure to so instruct the jury in Instruction 5.

Instruction 3 explains the presumption of innocence and the requirement that proof of guilt be beyond a reasonable doubt. Instruction 4 defines robbery, robbery with aggravation and other terms. Instruction 5 states:

'Before you can return a verdict of guilty against the defendant of robbery with aggravation, you must find from the evidence that the state has established beyond a reasonable doubt each one of the following propositions:'

(1, 2, 3, paraphrased) That he stole the money from Larson, by force and violence or by putting Larson in fear, and it belonged to Larson or was in his possession, control or custody.

'4. That the defendant was at the time armed with a dangerous weapon, to-wit: a pistol, with intent, if resisted, to maim or kill the said Everett Larson; or that the defendant had at the time a confederate aiding or abetting him in such robbery who was present and so armed.

'If you find the state has failed to prove the offense of robbery with aggravation, as herein instructed, then you will try and determine whether the defendant is guilty beyond a reasonable doubt of the crime of robbery, as herein instructed.'

Instruction 6 states in part:

'Before you can find the defendant guilty of the included offense of robbery, you must find from the evidence that the state has proven beyond a reasonable doubt each one of the following propositions:' (listing the first three of the four propositions set out in Instruction 5).

The dangerous weapons provisions of Code section 711.2, I.C.A., is the additional element which distinguishes robbery with aggravation, the higher degree of the offense, from robbery, the lower degree.

The effect of the instructions given is that if the jury found defendant had been proven guilty of robbery, as defined in section 711.1, but had a reasonable doubt whether the additional element essential to robbery with aggravation had been proven, defendant should be found guilty of the lower degree only. Although the instructions do not use the language of section 785.4 they do express its meaning.

In State v. Ellington, 200 Iowa 636, 642, 643, 204 N.W. 307, 310, instructions which less clearly expressed the meaning of the statute, now section 785.4, were approved with the statement:

'We are of the opinion that these instructions sufficiently met the requirements of the statute; that the jury must have understood therefrom that, if they had a reasonable doubt of the degree of the offense proven, they could only convict of the lower degree.'

To the same effect is State v. Asbury, 172 Iowa 606, 615, 154 N.W. 915. See also State v. Norton, 227 Iowa 13, 21, 22, 286 N.W. 476, 480, 481; State v. Ingram, 219 Iowa 501, 505, 258 N.W. 186; State v. Butler, 157 Iowa 163, 165, 166, 138 N.W. 383. Defendant cites State v. Poston, 199 Iowa 1073, 203 N.W. 257; State v. Heft, 148 Iowa 617, 127 N.W. 830; State v. Neis, 68 Iowa 469, 27 N.W. 460; State v. Walters, 45 Iowa 389. In none of the cases cited by defendant were the assailed instructions fairly comparable to those in the case at bar. We hold the instructions comply with the requirements of section 785.4 of the Code, I.C.A.

II. The other error assigned is to the admission in evidence, over defendant's objections, of Exhibit 8, the bag, with the two automatic pistols, clips and ammunition, found in the weeds beside the road. Defendant contends it was inadmissible because the evidence did not show the pistols belonged to defendant and Turk or were used in the robbery. There was evidence each robber had a pistol, one described as a 38 or 45 pistol, clip type, the other as being light in color. The two pistols in the bag were 38 and 45 automatic or clip type pistols. The bag was found beside the road at the place where the police car surprised and commenced the pursuit of the parked car containing the fruits of the robbery.

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