State v. Wiese, s. 54279
| Decision Date | 19 January 1971 |
| Docket Number | Nos. 54279,54280,s. 54279 |
| Citation | 182 N.W.2d 918 |
| Parties | STATE of Iowa, Appellee, v. Roger WIESE, Appellant. STATE of Iowa, Appellee, v. Donald W. HATCH, Appellant. |
| Court | Iowa Supreme Court |
Dan Johnston, of Jesse, LeTourneau & Johnston, Des Moines, for appellants.
Richard C. Turner, Atty. Gen., Max A. Gors, Asst. Atty. Gen., and Max H. Buck, Marshalltown, County Atty., for appellee.
Defendants Roger Wiese and Donald Hatch, were charged separately by county attorney's true informations with illegal sales of a narcotic drug, in violation of section 204.2, Code, 1966. Both defendants entered pleas of not guilty and were separately tried and convicted. Following the court's overruling a motion for new trial in each case, defendants appealed. On applications of appellants, the cases were ordered consolidated for the purposes of appeal. We affirm on both appeals.
The defendants rely on two claimed errors for reversal: (1) The district court erred in overruling defendants' motion for directed verdict of acquittal which contended the evidence was insufficient to find defendant guilty, and (2) The court erred in failing to instruct the jury as to the Iowa accomplice corroboration statute, § 782.5, Code, 1966.
On October 17, 1969, Thomas Wignall, a resident of Marshalltown, was under indictment in the Marshall county district court for the crime of breaking and entering, and one Craig LaVerne Scovill, also of Marshalltown, was under indictment for the commission of a felony in Marshall County. Both are admitted users of narcotics. They were procured by the county attorney and sheriff of Marshall County to effect purchases of marijuana or other drugs from the defendants Hatch and Wiese. They testified they purchased a package containing marijuana from defendant Wiese on October 17, 1969, at which time they paid Wiese $35 in currency which had been furnished them by the authorities, that the purchase took place at a restaurant in Marshalltown, and that they then went to Scovill's apartment where Wignall cut the contents of the package in two, rewrapping half of it and retaining half for his own use. The claimed purchase from defendant Hatch was made following a contact at a restaurant, and arrangements were then developed for Hatch to deliver a package of marijuana at the Wignall home which Wignall and Scovill testified he did, and for which he was also paid a sum of money in currency which had likewise been furnished the purchasers by the authorities. Again the contents of the package were divided, one-half of which was then turned over to the sheriff and one-half was retained by Wignall and Scovill for their own use. The fact that Hatch did come to the Wignall home is corroborated by Wignall's wife and Scovill's wife, but neither testified they saw any drugs or currency exchanged between their husbands and the defendant Hatch.
At trial both defendants were represented by the same appointed counsel. The matters urged on appeal were not raised in the lower court, that is to say, there was no claim made at trial below that Scovill and Wignall were accomplices of the defendants and no exceptions were taken to the court's instructions and no request was made for instruction as to accomplice corroboration required by § 782.5, Code, 1966. Counsel on appeal urges, however, that since there was absolutely no instruction on the corroboration issue, and since the issue was crucial to the question of the guilt or the innocence of the defendants, that the failure of the court to instruct thereon was reversible error, even in the absence of a request by defense counsel.
I. Defendants are charged with violation of § 204.2, Code, 1966, which provides,
'It shall be unlawful for any person to manufacture, possess, have under his control, sell, purchase, prescribe, administer, dispense, compound, or propagate any narcotic drug, or any preparation containing a narcotic drug, except as authorized in this chapter.'
Obviously, the statute proscribes the sale of narcotics and also proscribes the purchase or possession of the same by anyone not authorized to either sell or possess them. It is significant to note, therefore, that several and separate crimes are proscribed by the foregoing statute.
The test for determining whether a person is an accomplice of another charged with the commission of a public offense is ordinarily whether or not he could be prosecuted for the same and identical crime himself. Clearly Wignall and Scovill could not have been prosecuted for the sale of narcotics. We are unable to conclude that Scovill and Wignall were accomplices of either defendant. State v. Myers, 207 Iowa 555, 223 N.W. 166; State v. Tippett, 244 Iowa 1350, 1354, 60 N.W.2d 538, 540; State v. Dwyer (N.D., 1969), 172 N.W.2d 591; People v. Ricci, 59 Misc.2d 259, 298 N.Y.S.2d 637; People v. Freytas, 157 Cal.App.2d 706, 321 P.2d 782; Tellis v....
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State v. Jennings, 54612
...is an accomplice is if he could be charged with and convicted of the specific offense for which an accused is on trial. See State v. Wiese, 182 N.W.2d 918, 920 (Iowa); State v. Upton, 167 N.W.2d 625, 628 (Iowa); 1 Underhill's Criminal Evidence, § 175 (5th ed., Herrick); 21 Am.Jur.2d, Crimin......
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State v. Wiese
...§ 204.20, The Code, 1966. They took direct appeal but raised no question about their sentences. The cases were affirmed in State v. Wiese, 182 N.W.2d 918 (Iowa 1971). Defendant Wiese then petitioned for postconviction relief alleging in part that his sentence 'violated the indeterminate sen......
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...605--606 (Iowa 1973). Courts must so instruct even without a request when the issues presented justify an instruction. State v. Wiese, 182 N.W.2d 918, 921 (Iowa 1971). See also State v. Wheeler, 216 Iowa 433, 435, 249 N.W. In the present case the question as to whether marijuana was a narco......
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