State v. Schmidt
| Decision Date | 13 January 1948 |
| Docket Number | 47032. |
| Citation | 30 N.W.2d 473,239 Iowa 440 |
| Parties | STATE v. SCHMIDT. |
| Court | Iowa Supreme Court |
Rehearing Denied March 12, 1948.
William P. Welch and William H. Welch, both of Logan, and Robert K Brannon, of Denison, for appellant.
Robert L. Larson, Atty. Gen., Charles H. Scholz, Asst. Atty. Gen and L. V. Gilchrist, Co. Atty., of Denison, for appellee.
On October 10, 1946, the grand jury of Crawford County, Iowa, returned at indictment accusing Frank Schmidt of the crime of larceny in that the said Schmidt on or about September 17, 1946 stole from Ray Bendixon oats in the amount of one hundred to one hundred fifty bushel of oats, worth more than twenty dollars. Upon a plea of not guilty, the cause was tried to a jury which returned a verdict of guilty, finding the value of the oats to be in excess of twenty dollars. From a judgment entered thereon, defendant Frank Schmidt appeals.
Appellant urges eight propositions as a basis for a reversal. They are all more or less interwoven with two being primarily urged: (1) The refusal of the trial court to direct a verdict at the close of the State's evidence and of all the evidence. (2) Exceptions to certain instruction given by the Court.
I. Should the trial court have directed a verdict for Appellant? In the recent case of State v. Traas, 230 Iowa 826, 830, 831, 298 N.W. 862, 865, in commenting upon this question, we said: . In considering this 1st assigned error it is necessary to consider the evidence in the light of above pronouncement.
The crime charged is larceny. Larceny is defined as the wrongful taking and carrying away by a person of the personal property of another from any place, with a felonious intent to convert it to the taker's own use without the consent of the owner. State v. Banoch, 193 Iowa 851, 186 N.W. 436. The felonious taking from one entitled to the possession, although not the owner, may constitute larceny. State v. Stanley, 48 Iowa 221; State v. Rivers, 60 Iowa 381, 13 N.W. 73, 14 N.W. 738. The very essence of the crime of larceny is the intent with which the taking is done. Appellant claims the State has utterly failed in proof of a felonious intent.
There is not much dispute in the facts. Appellant and Bendixon stood in the relationship of landlord and tenant. By virtue of a written lease, Appellant, as landlord, was entitled to two-fifths of all oats raised by Bendixon. On September 17, 1946, Appellant, having received at a prior date 180 bushels of oats went to the Bendixon farm and took from the granary one hundred bushels of oats, more or less. In January 1947, and prior to the trial under the indictment in question, Appellant received from Bendixon in a rent settlement, some two hundred bushels of oats in addition to the ones previously received and taken.
The written lease provides that the lessee is to deliver the landlord's share to any place at any time as directed by the landlord within a five mile area. It also provides that should the lessee refuse or neglect to perform the provisions of the lease, the landlord may enter the premises and perform the same. Under the record it is clear that on at least two occasions prior to September 17, the landlord requested Bendixon to haul oats to his home farm, a distance of a mile or so, and that these requests were not complied with.
The record further discloses that after the threshing and delivery to the landlord of 180 bushels of oats, a dispute arose between the parties. It was claimed by the landlord that the oats he received were of poorer quality than those kept by the tenant. Appellant claims Bendixon told him he could take oats from any of the bins, where they were stored. Bendixon admits this but adds that this consent was conditioned upon Bendixon being present when Appellant took the oats. He was not present at the time.
It is claimed by the State that Appellant took the oats from Bendixon's bin. There is evidence that the oats were stored in various bins. Just after the threshing commenced, Appellant was at the granary and helped with the sweeping and cleaning of one of the bins. It is in this bin that Bendixon claims he placed Appellant's oats. No where in the record does it appear that Appellant was advised of this. It does appear without dispute that Appellant was not about the farm at the time of the alleged division and storage by Bendixon. It also appears that on September 17th, when the oats were taken, Appellant had not been advised of the total yield.
Taking the evidence at its face value and assuming that under the lease Bendixon was the owner of the oats taken, the only evidence of a felonious intent upon the part of Appellant, is the bare fact that he took them. As...
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