State v. Sweetman
| Decision Date | 19 November 1935 |
| Docket Number | 43023. |
| Citation | 263 N.W. 518,220 Iowa 847 |
| Parties | STATE v. SWEETMAN. |
| Court | Iowa Supreme Court |
Appeal from District Court, Polk County; Jos. E. Meyer, Judge.
An indictment for larceny of an automobile. Jury found defendant guilty. Defendant appeals. Opinion states the facts. Decision of lower court affirmed.
Affirmed.
Ted Sloane, of Des Moines, for appellant.
Carl A Burkman, Co. Atty., and Francis J. Kuble, Asst. Co. Atty both of Des Moines, and Edward L. O'Connor, Atty. Gen and Walter F. Maley, Asst. Atty. Gen., for the State.
The defendant, E. J. Sweetman, was indicted by the grand jury of Polk county for larceny of a motor vehicle, as defined by section 13011. The car was a Chevrolet coach and the property of H. C. Hoskins, and in the possession and custody of Mrs H. C. Hoskins. The defendant entered a plea of " not guilty."
The jury panel was not drawn in the presence of the defendant, but was sent in from another room, and objection thereto was made for that reason. The objection was overruled and defendant excepted. The jury having been selected and sworn, the trial was begun and the state put in its evidence. From that evidence the following facts are to be found:
The car was a Chevrolet coach, license No. 77-11716, motor No. 3732644. Mrs. Hoskins took the car the morning of November 2, 1934, to a parking station at Ninth and High streets, and went for it about 3:30 p. m., and the car was gone. The next time the Hoskins saw the car was December 27th, and it had been driven about 2,700 more miles and was damaged, and the license plates were gone. No permission had been given by the Hoskinses for any one to take the car. December 25th, at about 1:15 a.m., a policeman, Cessna, saw the car parked along the curb at Fourteenth and Crocker streets, having on license plates No. 77-26839, from another car, which he had twice seen defendant driving. Sweetman and Frances Finn were walking near the place where the car was found. Cessna searched Sweetman, who had some keys in his hand, which he passed to Frances Finn, and she threw them away; and Cessna picked up the keys and found them to be the keys to the Hoskins car. There were three quarts of alcohol in the car and a quart bottle half full of alcohol in Sweetman's pocket. An examination of the car disclosed the fingerprint of Sweetman on the glass in the right front door of the car. Experts testified that the fingerprint was from the left index finger of Sweetman.
When the state rested, the defendant made a motion for a directed verdict, the substance of which was that there was not enough evidence to convict, which motion was overruled. The defendant then rested, and renewed his motion, meeting the same ruling. The case was submitted to the jury, and on the 29th of January, it returned a verdict of " guilty," and on February 4, 1935, the defendant was sentenced to the penitentiary at Fort Madison for ten years. The defendant appealed.
As to the errors complained of, the first is as to the selection of the jury. It will be borne in mind that in Polk county there are six district judges, one ordinarily being assigned to equity, leaving five who may be engaged in the trial of jury cases, and we can easily see how there can be five cases running with juries in the box at one time, for so the practice has grown up in that county. That one of the judges engaged in drawing the jury to the proper number of jurors might send them in to another court is not unlikely. That such practice is legal has been determined by this court in State v. McHenry, 207 Iowa, 760, 223 N.W. 535, and so fully decided in that case, which was an indictment for possession of burglar tools. The McHenry Case decides that substantial compliance with the statute (Code 1931, §§ 11477, 11478), is all that is necessary. There is no showing anything was done when the poll was taken; that is, anything improper. All the defendant is entitled to is a fair and impartial trial by a jury of twelve. He is given the...
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