State v. Van Voltenburg, No. 51788

CourtUnited States State Supreme Court of Iowa
Writing for the CourtRAWLINGS
Citation147 N.W.2d 869,260 Iowa 200
PartiesSTATE of Iowa, Appellant, v. Gean Elvin VAN VOLTENBURG, Appellee.
Docket NumberNo. 51788
Decision Date10 January 1967

Page 869

147 N.W.2d 869
260 Iowa 200
STATE of Iowa, Appellant,
v.
Gean Elvin VAN VOLTENBURG, Appellee.
No. 51788.
Supreme Court of Iowa.
Jan. 10, 1967.
Motion for Rehearing Overruled March 9, 1967.

[260 Iowa 202]

Page 870

Lawrence Scalise, Atty. Gen., Ronald A. Riley, Asst. Atty. Gen., Jack M. Fulton, Linn County Atty., and Thomas M. Horan, Asst. County Atty., for appellant.

Blake H. Shipton, Center Point, for appellee.

RAWLINGS, Justice.

By county attorney's information defendant was charged with possession of burglar's tools, entered a plea of not guilty, was tried, convicted and sentenced. His motions for a new trial and in arrest of judgment were overruled and he appeals.

About 2:15 a.m., September 8, 1964, a private watchman saw defendant enter an alleyway in Cedar Rapids. The watchman first called the police, then in his automobile entered the alley, located defendant, and they talked briefly. During this conversation the watchman saw defendant raise his shirt and remove a brown paper bag which he placed under the left rear wheel of the

Page 871

watchman's car. Defendant then walked away. The watchman promptly retrieved the paper bag in which he found a short pry bar and a screw driver with cloth tape around the handle. He followed defendant, the police came, arrested him, and a search of his person revealed he was carrying a stainless steel butter knife.

On trial expert testimony was presented to the effect these instruments were tools normally and commonly used in the crime of burglary. See State v. McHenry, 207 Iowa 760, 771, 223 N.W. 535.

[260 Iowa 203] Defendant assigns two errors relied on for reversal. First: Code section 708.7, which provides a statutory presumption is unconstitutional, being in violation of Amendments 5 and 14, Constitution of the United States. Second: Permitting the prosecution to inquire, on cross-examination of accused, as to prior felonies and number of convictions, violated defendant's rights under Amendment 14, Constitution of the United States.

I. Counsel for defendant should bear in mind rule 344(a)(4)(e), R.C.P. Although this is a criminal case we again suggest citing the volume and page where one of our cases may be found in Both the Iowa Reports and North Western Reporter, if reported therein. See Nelson v. Cities Service Oil Company, Iowa, 146 N.W.2d 261, 262, and State v. Bradley, 254 Iowa 211, 223, 116 N.W.2d 439.

It would also be helpful, when citing cases in the United States Supreme Court Reports, to provide us with the volume and page where found in the Supreme Court Reporter.

II. Code section 708.7 states as follows: 'Possession of burglar's tools--evidence. If any person be found having in his possession at any time any burglar's tools or implements, with intent to commit the crime of burglary, he shall be imprisoned in the penitentiary not more than fifteen years, or be fined not exceeding one thousand dollars. The court before whom such conviction is had shall order the retention by the sheriff of such tools or implements, to be used in evidence in any court in which such person is tried for the offense herein defined, or that of burglary, and the possession of such tools or implements shall be presumptive evidence of his intent to commit burglary.'

Defendant contends the statutory presumption provided in the last sentence of the act is constitutionally offensive.

Generally the test of constitutionality of statutes making proof of a certain fact presumptive or prima facie evidence of another fact, is whether there is a natural evidentiary relation between the fact established by proof and the ultimate fact presumed. See 12 C.J.S. Burglary § 69, page 753; 1o Am.Jur.2d, Burglary, section 77, page 369; Underhill's Criminal Evidence, Fifth Ed., section 46, page 75; and Annos. 162 A.L.R. 495.

[260 Iowa 204] III. In Tot v. United States, 319 U.S. 463, 467--468, 63 S.Ct. 1241, 1244--1245, 87 L.Ed. 1519, a congressional act to the effect that where a person previously convicted of a crime of violence is found in possession of firearms or ammunition it shall be presumed the article was received in interstate or foreign commerce, was held unconstitutional. The court there said:

'Although the Government may be unable to produce testimony of eye witnesses to the conduct on which guilt depends, this does not mean that it cannot produce proof sufficient to support a verdict. The jury is permitted to infer from one fact the existence of another essential to guilt, if reason and experience support the inference. In many circumstances courts hold that proof of the first fact furnishes a basis for inference of the existence of the second.

'* * * The Congress has power to prescribe what evidence is to be received in the courts of the United States. The section under consideration is such legislation. But the due process clauses of the

Page 872

Fifth and Fourteenth Amendments set limits upon the power of Congress or that of a state legislature to make the proof of one fact or group of facts evidence of the existence of the ultimate fact on which guilt is predicated. The question is whether, in this instance, the Act transgresses those limits.

'The Government seems to argue that there are two alternative tests of the validity of a presumption created by statute. The first is that there be a rational connection between the facts proved and the fact presumed; the second that of comparative convenience of producing evidence of the ultimate fact. We are of opinion that these are not independent tests but that the first is controlling and the second but a corollary. Under our decisions, a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience. This is not to say that a valid presumption may not be created upon a view of relation broader than that a jury might take in a specific case. But where the inference is so strained as not to have a reasonable relation to the circumstances [260 Iowa 205] of life as we know them it is not competent for the legislature to create it as a rule governing the procedure of courts.'

The same court later held an act of Congress which authorized the drawing of an inference an accused violated a law prohibiting the business of operating as a distiller or rectifier without giving prescribed bond from his unexplained presence at the site of an illegal still was constitutionally permissible, and in so doing stated:

'* * * the constitutionality of the legislation depends upon the rationality of the connection 'between the facts proved and the ultimate fact presumed.'...

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17 practice notes
  • Catholic Charities of Archdiocese of Dubuque v. Zalesky, No. 2--56720
    • United States
    • United States State Supreme Court of Iowa
    • August 29, 1975
    ...216 (Iowa 1972) (inference arising from the presence of a specified percentage of alcohol in defendant's blood); State v. Van Voltenburg, 260 Iowa 200, 147 N.W.2d 869 (1967) (inference or presumption of criminal intent from the possession of burglar In any event, should this position be int......
  • State v. Martin, No. 55207
    • United States
    • United States State Supreme Court of Iowa
    • April 24, 1974
    ...711 (1971); Spencer v. State of Texas, 385 U.S. 554, 560--565, 87 S.Ct. 648, 652--654, 17 L.Ed.2d 606 (1967); State v. Van Voltenburg, 260 Iowa 200, 210, 147 N.W.2d 869 (1967); Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255, 260--262 III. That brings us to the specifies of the first ques......
  • State v. Carey, No. 52942
    • United States
    • United States State Supreme Court of Iowa
    • February 11, 1969
    ...Iowa 1275, 1283, 71 N.W.2d 35, 40; State v. Frese, 256 Iowa 289, 292, 127 N.W.2d 83, Page 31 85, and citations; State v. Van Voltenburg, 260 Iowa 200, 147 N.W.2d 869, 873, In the present case the county attorney had information which he conceded was hearsay to the effect that on the day of ......
  • State v. Hackett, No. 55158
    • United States
    • United States State Supreme Court of Iowa
    • September 19, 1972
    ...transgressing the Fifth and Fourteenth Amendments.' Id., at 85, 90 S.Ct., at 1898.' (Emphasis supplied.) See State v. Van Voltenburg, 260 Iowa 200, 208--210, 147 N.W.2d 869 (1967); State v. Cote, 108 N.H. 290, 235 A.2d 111, 114--116 (1967), cert. denied, 390 U.S. 1025, 88 S.Ct. 1412, 20 L.E......
  • Request a trial to view additional results
17 cases
  • Catholic Charities of Archdiocese of Dubuque v. Zalesky, No. 2--56720
    • United States
    • United States State Supreme Court of Iowa
    • August 29, 1975
    ...216 (Iowa 1972) (inference arising from the presence of a specified percentage of alcohol in defendant's blood); State v. Van Voltenburg, 260 Iowa 200, 147 N.W.2d 869 (1967) (inference or presumption of criminal intent from the possession of burglar In any event, should this position be int......
  • State v. Martin, No. 55207
    • United States
    • United States State Supreme Court of Iowa
    • April 24, 1974
    ...711 (1971); Spencer v. State of Texas, 385 U.S. 554, 560--565, 87 S.Ct. 648, 652--654, 17 L.Ed.2d 606 (1967); State v. Van Voltenburg, 260 Iowa 200, 210, 147 N.W.2d 869 (1967); Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255, 260--262 III. That brings us to the specifies of the first ques......
  • State v. Carey, No. 52942
    • United States
    • United States State Supreme Court of Iowa
    • February 11, 1969
    ...Iowa 1275, 1283, 71 N.W.2d 35, 40; State v. Frese, 256 Iowa 289, 292, 127 N.W.2d 83, Page 31 85, and citations; State v. Van Voltenburg, 260 Iowa 200, 147 N.W.2d 869, 873, In the present case the county attorney had information which he conceded was hearsay to the effect that on the day of ......
  • State v. Hackett, No. 55158
    • United States
    • United States State Supreme Court of Iowa
    • September 19, 1972
    ...transgressing the Fifth and Fourteenth Amendments.' Id., at 85, 90 S.Ct., at 1898.' (Emphasis supplied.) See State v. Van Voltenburg, 260 Iowa 200, 208--210, 147 N.W.2d 869 (1967); State v. Cote, 108 N.H. 290, 235 A.2d 111, 114--116 (1967), cert. denied, 390 U.S. 1025, 88 S.Ct. 1412, 20 L.E......
  • Request a trial to view additional results

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