State v. Russell, 51991

Citation259 Iowa 1133,147 N.W.2d 22
Decision Date13 December 1966
Docket NumberNo. 51991,51991
PartiesSTATE of Iowa, Appellee, v. Arthur R. RUSSELL, Appellant.
CourtUnited States State Supreme Court of Iowa

Joseph L. Phelan, Fort Madison, for appellant.

Lawrence F. Scalise, Atty. Gen., Don R. Bennett, Asst. Atty. Gen., and Robert B. Dickey, County Atty., for appellee.

LARSON, Justice.

Defendant Arthur R. Russell was charged by county attorney's information with the crime of robbery with aggravation under sections 711.1 and 711.2 of the 1962 Code of Iowa. He entered a plea of not guilty, was tried before court and jury on May 24, 1965, and was found guilty as charged on May 25, 1965. When his motion for a new trial was overruled on June 22, 1965, he was sentenced to a term of twenty-five years at the Iowa State Penitentiary. He appeals. We affirm.

Appellant asserts the trial court erred in refusing to grant a new trial on the basis that the sentence of twenty-five years imprisonment imposed upon him was excessive and funfair when two of his associates, also involved in the robbery, received substantially less punishment, and that his federal and state rights were thus violated.

The record is clear that Mr. Jackson, one of his associates, was also originally charged with the crime of robbery with aggravation. Later, on a guilty plea, Jackson was convicted of the lesser crime of receiving stolen property and was sentenced to imprisonment for a term not to exceed five years in the penitentiary. Section 712.1, Code 1962. Mr. Ferris, the other associate, also originally charged with the crime of robbery with aggravation, was on a plea of guilty convicted of the lesser crime of robbery and received a sentence of ten years in the Men's Reformatory. Section 711.3, Code 1962.

Thus it appears each of these parties was convicted of a different crime, and we do not have here a situation where three parties, charged and convicted of the same offense, received different sentences. Rather, each received the sentence authorized or required by the statute for the crime of which he stood convicted. It is appeallee's position that the parties were not in the same class or in like situation or circumstances such as to offend the tenets of the federal or state constitutions. We must agree.

In this trial Ferris testified inter alia that he actually committed the robbery of the tavern, that he did not want to do it but was forced to do so by threats of appellant, that the appellant took possession of the loot of about $380.00, gave Jackson fifty or sixty dollars, and gave him just ten dollars.

I. While in his motion for a new trial defendant contended the evidence to corroborate Ferris' testimony was not sufficient to take the case to a jury, his counsel now concedes this evidence was sufficient. The corroboration required by statute, of course, need not be of every material fact testified to by an accomplice, but it is sufficient if it can fairly be said the accomplice is corroborated in some material fact tending to connect defendant with the commission of the offense. State v. Roberts, 255 Iowa 166, 174, 121 N.W.2d 513; State v. Latham, 254 Iowa 513, 515, 117 N.W.2d 840. At any rate we agree that there was no error in holding the evidence in this case was sufficient for jury consideration.

II. It appears without serious dispute that Ferris, Jackson and appellant were confederates and that the evidence adduced was sufficient to sustain a charge that appellant aided and abetted Ferris in committing the robbery.

Section 711.1 of the 1962 Code provides: 'If any person, with force or violence, or by putting in fear, steal and take from the person of another any property that is the subject of larceny, he is guilty of robbery, and shall be punished according to the aggravation of the offense, as is provided in sections 711.2 and 711.3.'

Section 711.2 of the Code provides: 'If such offender at the time of such robbery is armed with a dangerous weapon, with intent, if resisted, to kill or maim the person robbed; or if, being so armed, he wound or strike the person robbed; or if he has any confederate aiding or abetting him in such robbery, present and so armed, he shall be imprisoned in the penitentiary for a term of twenty-five years.'

Section 711.3 of the Code provides: 'If such offender commits the robbery otherwise than is mentioned in section 711.2, he shall be imprisoned in the penitentiary not exceeding ten years.'

As we understand appellant, he contends the court should have given him a sentence no greater than the sentence given Ferris, who actually committed the taking. It is true, the distinction between an accessory and a principal has been abrogated (section 688.1, Code 1962), and perhaps each of these parties originally was properly charged with robbery with aggravation. But only defendant stood trial on that charge and he was convicted. The others chose to plead guilty to a lesser charge and they were then subject to a lesser penalty provided therefor. Why the county attorney chose to charge them with a lesser crime and the court permitted the lesser charge we do not know, but since there was no showing of impropriety of these actions, we may assume they were based on proper values.

At any rate, the penalty prescribed by the applicable statute gave the court no discretion. On conviction of robbery with aggravation either as a principal or as an accessory, the accused must receive a sentence of twenty-five years in the penitentiary. Section 711.2. As the trial court pointed out, if it had departed from that statutory mandate and given a lesser sentence, the warden would of necessity have booked him as required in the statute. We must, therefore, conclude that the trial court did not err in refusing the request to reduce this sentence. It would have been error to do so.

III. The power of the legislature to prescribe punishment for criminal offense is subject to the constitutional provision forbidding the states to deprive persons of their life, liberty, or property, without due process of law, but nevertheless it is generally held that a state has full control over matters of procedure in its courts. This principle has received liberal interpretation in its application to statutes regulating the punishment of persons convicted of crime, when such enactments are challenged on constitutional grounds. Moyer v. Peabody, 212 U.S. 78, 29 S.Ct. 235, 53 L.Ed. 410; 21 Am.Jur.2d, § 581, page 544.

Appellant's contention that his sentence herein violated his constitutional rights set forth in the Fourteenth Amendment to the United States Constitution, and Section 9, Article I, of the Iowa Constitution, therefore, has no merit. Different required sentences were imposed upon those who stood convicted of different crimes. The fact that one may have been charged with several crimes as a result of certain acts does not deprive him of equal protection of the laws when it appears another in similar circumstances may be charged with a lesser crime and punished differently.

It is stated in 21 Am.Jur.2d, § 582, page 545: 'The Fourteenth Amendment to the Federal Constitution guarantees to everyone within the jurisdiction of a state the equal...

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10 cases
  • State v. Swaim
    • United States
    • Iowa Supreme Court
    • 23 Septiembre 1987
    ...a state constitution or statutory law affords greater protection of individual rights than the federal constitution. See State v. Russell, 147 N.W.2d 22, 25 (Iowa 1967); New Jersey v. Hunt, 91 N.J. 338, 344-46, 450 A.2d 952, 955 (N.J.1982); Comment, The Interpretation of State Constitutiona......
  • State v. Sheffey
    • United States
    • Iowa Supreme Court
    • 15 Octubre 1975
    ...(Iowa 1972). Unless there clearly appears to be a miscarriage of justice this discretion will rarely be disturbed. State v. Russell, 259 Iowa 1133, 147 N.W.2d 22 (1967). It will not be disturbed The conviction is therefore affirmed. Affirmed. ...
  • Huber v. Hovey, 91-2000
    • United States
    • Iowa Supreme Court
    • 19 Mayo 1993
  • State v. Fuhrmann, 59256
    • United States
    • Iowa Supreme Court
    • 21 Septiembre 1977
    ...(Iowa 1972). Unless there clearly appears to be a miscarriage of justice this discretion will rarely be disturbed. State v. Russell, 259 Iowa 1133, 147 N.W.2d 22 (1966). It will not be disturbed The district court judgment and sentences are affirmed. AFFIRMED. ...
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