State v. Schmidt, No. 47032.

• Court: United States State Supreme Court of Iowa
• Writing for the Court: HAYS
• Citation: 30 N.W.2d 473,239 Iowa 440
• Docket Number: No. 47032.
• Decision Date: 12 March 1948
• Parties: STATE v. SCHMIDT.

239 Iowa 440
30 N.W.2d 473

STATE
v.
SCHMIDT.

No. 47032.

Supreme Court of Iowa.

Jan. 13, 1948.
Rehearing Denied March 12, 1948.

Appeal from District Court, Crawford County; Bruce M. Snell, Judge.

Defendant Frank Schmidt was indicted, tried and convicted of the crime of larceny. From a judgment entered accordingly, he has appealed.

Reversed.

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.

HAYS, Justice.

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

[30 N.W.2d 474]

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: ‘This court may set aside a judgment on a verdict of guilty when the verdict is very clearly against the weight of the evidence, or is so utterly wanting that it cannot be sustained. (Citing cases.) The district court may direct a verdict for the accused under the same circumstances. But when either court so rules, it accepts the evidence as true, but holds that notwithstanding the evidence is taken at its face value, it is insufficient to establish the guilt of the defendant’. 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...