State v. Wessling
| Decision Date | 02 May 1967 |
| Docket Number | No. 52428,52428 |
| Citation | 150 N.W.2d 301,260 Iowa 1244 |
| Parties | STATE of Iowa, Appellee, v. Albert Charles WESSLING, Appellant. |
| Court | Iowa Supreme Court |
H. A. McQueen, Sioux City, for appellant.
Richard C. Turner, Atty. Gen., Stephen C. Robinson, Asst. Atty. Gen., Richard E. Lee, County Atty., and Mark McCormick, Fort Dodge, for appellee.
Appellant, Albert Charles Wessling, was by information charged with breaking and entering in violation of section 708.8, 1962 Code of Iowa, and with being an habitual felon in violation of section 747.1, Code of Iowa. Following trials and adverse jury verdicts he was sentenced and now appeals.
Appellant objected to being referred to as the defendant but he was such and we will so refer to him.
What defendant calls 'propositions relied upon for reversal' we will consider as allegations of error.
Defendant urges 13 different grounds for reversal. They are reduced to nine in his statement of issues on appeal. Some are unique, some are repetitious in that they involve comparable problems, none has sufficient merit for reversal.
At 3:15 a.m. on May 12, 1965 an electric alarm at a bowling alley next door to the Moose Club Lodge in Webster City alerted the police. Officers Bordwell and Spellmeyer were the first to arrive at the scene. They observed someone running in the pasture north of the bowling alley. Officer Bordwell then went to the fence but saw no one. He stayed in that vicinity for 20 to 30 minutes. He then went on patrol and found on a nearby driveway a 1956 Chevrolet that defendant had borrowed from a friend and had been using.
Officer Bordwell returned to the bowling alley where he again saw someone running. Together with Chief Neff he went to the second fence and found a canvas duffel bag containing a crowbar, hammer and other tools. They followed a set of footprints to the east edge of the field. Along the fence line they lost the prints. They crossed the fence and went into a ravine east of the river and found a set of tracks a couple of hundred yards from where they lost them going east. Chief Neff followed the prints on the river and Officer Bordwell started up on the bank. They both observed the defendant at the same time hiding in a little cave or culvert area about 100 feet west of the river. Defendant said he had been fishing but had no equipment with him.
The defendant had in his possession a blue-colored jacket which he was sitting on. He claimed that it did not belong to him.
Defendant was taken into custody. He was advised 'that he had a right to an attorney and that he did not have to make any statement because it could be used against him in court.'
Officer Beek testified that he first saw the defendant at the police station about 5:00 a.m. He advised the defendant of his Constitutional rights. Defendant was told he could use the telephone. Defendant answered, 'I know that.' The defendant stated he would call his attorney later. He had $260 in his billfold at that time. In the cell area the defendant was asked to remove his clothes with the exception of his undershorts and T-shirt. The clothes, including the jacket, were placed in plastic bags and sent to the F.B.I.
Defendant was fully advised and aware of his rights.
In a later conversation with Officer Beek defendant said,
The officers learned, while at breakfast at approximately 6:30 or 7 o'clock that the Moose Lodge had been broken into.
Officer Kennedy testified that at about 7:00 to 7:30 a.m. he went to the Moose Lodge and searched the area in the rear; that he crossed one fence and then went to a fence by the plowed field. He saw tracks leading into the plowed field. Nickels, dimes and quarters were scattered along the footprints. When picked up they totalled about $35. He saw tracks leading into the plowed field. The footprints led to the north and northwest. They then went east in a furrow of the plowed ground which was soft. The tracks were clear until they went east and then looked like knee and hand prints to the east line of the plowed field. In a furrow he found a pair of gloves twisted together.
At about 7:00 a.m. Chief Neff returned to the Moose Club Lodge. He took the striker plate and wood from the door and took a fragment of blue cloth from the fence behind the Moose Lodge, 200 to 250 feet from where the tools were found. He also took soil samples from the plowed field (State's Exhibit 'X'). The several exhibits were mailed to F.B.I. laboratories in Washington, D.C., for analysis.
Special Agent Poppleton of the F.B.I. testified as an expert in toolmark identification. He examined all of the tools submitted to him and stated conclusively that the tool marks on the striker plate from the Moose Lodge door were made by a screwdriver (State's Exhibit 'O'), which was among the tools found by the fence behind the Moose Lodge.
Special Agent Miller of the F.B.I. laboratory in Washington testified that a chemical analysis of the paint from State's Exhibit 'O,' the screwdriver, had paint on it from the wood and striker plate taken from the door. He also concluded that the soil removed from the jacket pockets was exactly the same as the soil sample, State's Exhibit 'X.' The soil samples in defendant's shoes, gloves and trousers were too small and limited for a complete mineralogical analysis or chemical testing.
Special Agent Duckett of the F.B.I. testified as an expert witness that the mateerial in State's Exhibit 'J,' a piece of torn cloth, corresponded exactly with the material found in the right sleeve of the jacket, State's Exhibit 'L.' He found bits of suede leather in the pockets of the jacket that matched exactly the suede gloves found in the plowed field.
Because of the defendant's challege to the trial court's procedure we note the chronological record.
On May 12, 1965 an information was filed in police court charging defendant with breaking and entering the Moose Club.
On May 13, 1965 he filed an appearance bond.
On October 4, 1965 a verified and approved county attorney's information was filed in district court accusing defendant of breaking and entering the Moose Lodge Club.
The court's calendar entry on October 8, 1965 is as follows:
On October 14 defendant filed a written plea of 'not guilty' and a motion for continuance for trial at the next term of court. The case by consent was continued until the November term of court.
According to the clerk's filing stamp on December 9, 1965 two new informations against defendant were filed in the same case. For some unexplained reason, but which we consider of little significance, there is a slight discrepancy in the dates written in the various endorsements thereon. The county attorney's signature, the date of the judge's approval and the amount of bail appear to have been written with a coarse-pointed pen. The date of the county attorney's verification, the pen written filing date of the information and the signatures of the deputy clerk appear to have been written with a fine-pointed pen. Neither appears the same as the judge's signature. Similarities would indicate that the county attorney filled in the date of the judge's approval and the deputy clerk filled in the date of the county attorney's verification and filing date. The approval is dated December 7, 1965 and the other dates are December 8.
The first of these two informations according to the filing stamp was filed December 9, 1965 at 2:32 p.m. It charged defendant with breaking and entering and with being an habitual felon in that he had previously twice been convicted of breaking and entering.
The second information filed at 2:30 p.m. on December 9, 1965 charged breaking and entering and in its charging part was identical with the information filed October 4, 1965. On December 13, 1965 defendant filed two separate motions to dismiss information, set aside information and quash. One motion attacked the breaking and entering information. The other motion specifically by name attacked the habitual felon information.
Subsequent calendar entries by the court show the following:
'Dec. 17, 1965
'Same day
'Dec. 20, 1965
The trial on the breaking and entering charge continued on December 21. The evidence was introduced, the jury was instructed and the case submitted on December 22.
The jury returned a verdict of guilty of breaking and entering. Defendant was present in court. Time for sentencing was set for December 29 at 10 a.m.
On December 28 defendant filed motion for judgment notwithstanding the verdict, motion for new trial and exceptions to instructions.
On December 29 defendant was present with his attorney. the pending motions were heard. The court then commented:
'The Court: Now I believe that the next matter to take up is a new law in the State of Iowa, House File 565, which has now become the law of the State of Iowa. This is in matters where a person, a defendant, is charged with a crime of more than one...
To continue reading
Request your trial
-
State v. Carey
...decisions to our recent ones that a party desiring additional or more explicit instruction should request it.' State v. Wessling, 260 Iowa 1244, 150 N.W.2d 301, 309, affirms a conviction of breaking and entering and being an habitual criminal. Defendant assigned as error the court's failure......
-
Wessling v. Bennett
...the imposition of judgment and sentence and on May 2, 1967, the Supreme Court of Iowa affirmed petitioner's conviction in State v. Wessling, 150 N.W.2d 301 (1967). Petitioner filed an application for a writ of habeas corpus with this Court on April 17, 1968. The Court issued a Show Cause Or......
- Linge v. Iowa State Highway Commission
-
State v. Sahir, No. 5-940/04-2042 (IA 4/12/2006)
...our state legislature required prior convictions used as sentence enhancements to be determined by a jury. State v. Wessling, 260 Iowa 1244, 1259, 150 N.W.2d 301, 310 (1967). Iowa Rule of Criminal Procedure 2.19(9) requires, after conviction on the primary offense, a separate jury trial to ......