State v. Thornburgh

• Decision Date: 31 July 1974
• Docket Number: No. 56210,56210
• Citation: 220 N.W.2d 579
• Parties: STATE of Iowa, Appellee, v. James Ellis THORNBURGH, Appellant.
• Court: Iowa Supreme Court

Page 579

220 N.W.2d 579

STATE of Iowa, Appellee, v. James Ellis THORNBURGH, Appellant.

No. 56210.

Supreme Court of Iowa.

July 31, 1974.

Philip F. Miller, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Fred M. Haskins, Asst. Atty. Gen., Ray A. Fenton, Co. Atty., for appellee.

Heard before MOORE, C.J., and MASON, RAWLINGS, REYNOLDSON and HARRIS, JJ.

MASON, Justice.

September 14, 1972, a Polk County grand jury returned an indictment accusing James Ellis Thornburgh of the crime of larceny in the nighttime as defined in section 709.4, The Code. He appeals from judgment entered on a jury verdict convicting him of the lesser and included offense of larceny of the property of the value of more than $20. Section 709.2.

The factual circumstances of the offense arise out of the removal of a $3500 boat from the parking lot of Graber's Boat Sales in Johnston, Iowa. About 11:40 p.m. May 25, 1972, Officer Kinney of the Johnston police force saw defendant parked in the front of the Iltis Lumber Company with the hood of his car raised; Graber's Boat Sales is directly across the street from the lumber company. Upon inquiry defendant told Kinney the car had overheated and he was waiting for it to cool off.

Approximately one hour later the officer saw defendant drive away from Graber's pulling a boat behind him. The boat trailer had no lights and bore a 1971 license plate. Kinney stopped the car and asked defendant where he was going with the boat. Defendant stated he was taking it to a friend named Anderson who lived in Des Moines. Defendant did not remember Anderson's first name, however, nor did he remember where he lived. He stated Anderson purchased the boat that afternoon and had asked him to deliver it to Collin's Market on 63rd Street in Des Moines.

However, the boat was owned by Jack Benoit whose agent, Don Owens, had taken it to Graber's for repairs approximately two weeks previously. Defendant testified on his own behalf. His story was that he and a Mr. Anderson went to Graber's on the afternoon of May 25 and Anderson purchased the boat involved. Anderson allegedly showed defendant a bill of sale that same afternoon. Defendant stated he was simply acting on Anderson's request to deliver the boat to him when he picked it up that night.

Defendant has failed to separately and distinctly state the errors relied on for reversal. Rather, he presents an argument in five divisions. In most instances contentions which do not involve closely related propositions of law are argued together.

We summarize his contentions as gathered from the divisions of his argument as maintaining the trial court erred: (1) in overruling the motion to strike the amendment to the indictment and the request for bill of particulars; (2) in making and sustaining its own objections to questions asked by defense counsel; in denying defendant's motion for in camera inspection of an officer's note; in denying defendant's motion to suppress evidence of defendant's prior felony conviction; (3) in overruling defendant's motion for mistrial following the State's argument in which the assistant county attorney committed prejudicial error in alluding to the bad criminal character of defendant in jury argument, (4) in instructing the jury on recent possession of stolen property and impeachment for felony convictions; and (5) in overruling defendant's motions for directed verdict, new trial and in arrest of judgment.

I. The indictment as filed charged that Thornburgh committed larceny in the building and store of Graber's Boat Sales & Service in the city of Johnston, Polk County, Iowa, in the nighttime and took, stole and carried away therefrom goods and personal property the value of which exceeded the sum of $20.

January 30, 1973, approximately one week before trial, the court granted the State's oral ex parte request for amendment to the indictment by substitution of 'construction' for 'building and store.'

The following statutes are pertinent to the problem presented:

'773.43 Amendment. The court may, on motion of the state, and before or during the trial, order the indictment so amended as to correct errors or omissions in matters of form or substance.'

'773.44 Amendment before trial. If the application for an amendment be made before the commencement of the trial, the application and a copy of the proposed amendment shall be served upon the defendant, or upon his attorney of record, and an opportunity given the defendant to resist the same.'

These code sections provide the extent and manner in which an indictment may be amended. The State is without authority to amend in any respect save that authorized by section 773.43. The motion provided for in that section cannot be made before trial in any manner except as permitted in section 773.44. State v. Kiefer, 183 Iowa 319, 330, 163 N.W. 698, 702; State v. Bamsey, 208 Iowa 802, 806, 226 N.W. 57, 58.

Although the record does not disclose when defendant's counsel entered his appearance in this matter the clerk's transcript shows counsel made a motion for speedy indictment which was filed in the Polk district court September 13, 1972. Nevertheless, the order granting the ex parte oral motion did not direct that a copy of the order be mailed or served on defendant or his attorney of record in order to afford opportunity to resist the motion.

February 5, 1973, before commencement of trial defendant moved to strike the indictment as amended on the ground the order authorizing the amendment was based on the State's oral motion; that no written notice or written amendment was filed in the cause; and the order was entered ex parte without defendant being advised of the proposed amendment and without notice and opportunity to be heard.

It must be conceded the statutory procedure set out earlier was not followed.

At the close of defendant's motion the court inquired of defense counsel if the wanted to then make a resistance. Instead, counsel insisted it would be proper for the court to rule on his motion to set aside the indictment. The court again inquired if counsel wished to make a resistance. When he replied, 'No, Your Honor', the court overruled the motion and ordered the matter to proceed to trial advising counsel again that he had an opportunity to make a resistance but in the absence thereof the amendment was going to stand.

The court erred in entering its January 30 order authorizing the amendment--a conclusion which hardly admits of argument. The question is whether the error was prejudicial.

Under sections 773.43 and 773.44 an accused is entitled to be advised in a specified manner both of the substance and form of the proposed amendment to the indictment to the end that an opportunity be given him to resist the filing of such amendment.

The portion of the reporter's transcript set out above makes plain the court afforded defendant an opportunity to resist the amendment at the February 5 hearing on defendant's motion to strike the indictment. At that time defendant was afforded due process--notice and opportunity to be heard. In our opinion every purpose of the statutes was thus accomplished.

It appears defendant's purpose in the proceedings had immediately before commencement of trial was to have the court strike the indictment so as to be without jurisdiction to hear the offense charged. The trial court by its ruling refused to do that but did afford defendant opportunity to be heard in resistance.

In light of the fact Thornburgh's defense was essentially that he lacked the requisite intent necessary to sustain a conviction of the crime charged because he believed the boat belonged to Anderson for whom he was merely delivering it, the error of the court in entering its January 30 order could have had no influence in the course of the trial. No prejudice resulted.

The assignment is without merit.

II. In one brief point of division 2 of defendant's brief and argument he maintains a conviction too remote to have probative value should not be automatically received into evidence for impeachment purposes and should be excluded by the trial court in the exercise of its sound discretion.

It was stipulated defendant had been convicted of the felony offense of breaking and entering in 1959 and served in the penitentiary until his discharge August 1962; defendant had no other convictions.

Prior to trial defendant's motion to prevent the State from questioning defendant about any prior felony convictions was overruled by the court. The trial court stated that if defendant took the stand the State had the right in examining defendant for impeachment purposes to inquire whether he had been convicted of a felony.

After the State rested and before hearing defense testimony, defense counsel made a detailed motion asking the court to prevent the State from questioning defendant about any prior felony convictions. In substance the motion was based on the assertion the trial court had discretion to exclude such evidence due to its lack of probative value because of the remoteness of the conviction and by reason of such evidence being highly prejudicial in character outweighing its relevancy as to defendant's credibility.

Examination of the record leaves no doubt the assigned error was adequately preserved for consideration by this court.

The trial court in ruling on this motion indicated it felt bound by the present law of Iowa in light of the fact the Iowa Supreme Court had not adopted rule 609, Proposed Rules of Evidence for United States Courts and Magistrates.

April 24, 1974, more than a year after the trial in the present matter, this court announced its decision in State v. Martin, 217 N.W.2d 536.

In Martin the court announced that the standard adopted in that decision was not retroactively applicable but that, 'It will be applied only to * * * (3) cases tried before the filing of this opinion in which error has been properly preserved, and which (a) are pending on...