State v. Gates

67 N.W.2d 579, 246 Iowa 344, 1954 Iowa Sup. LEXIS 531
CourtSupreme Court of Iowa
DecidedDecember 14, 1954
Docket48389
StatusPublished
Cited by23 cases

This text of 67 N.W.2d 579 (State v. Gates) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gates, 67 N.W.2d 579, 246 Iowa 344, 1954 Iowa Sup. LEXIS 531 (iowa 1954).

Opinions

Larson, J.

The Rosenthal Hardware and Electric Appliance Store in the town of Portsmouth, Iowa, was entered in the early morning of January 27, 1953, and a great deal of merchandise, including a Brownie Kodak flash camera, a Duroflex tooled camera by Eastman, and kit, a quart thermos bottle, and some cartons of flash bulbs, was missing. A Brownie Kodak flash camera (Exhibit 1), a quart thermos bottle (Exhibit 3) and two cartons of flash bulbs (Exhibits 4 and 5) were found in defendant’s car when he was apprehended by the Shelby County sheriff in Omaha, Nebraska, on March 1, 1953. On March 2, 1953, a Duroflex tooled camera by Eastman in a kit (Exhibit 2) was found in the apartment of Ray Bergman in Omaha, an alleged accomplice of the defendant who later testified for the State. These articles were introduced in evidence over the objections of defendant that they were irrelevant and immaterial and not properly identified. Based upon their relevancy and the testimony given therewith, the trial court under proper instructions on the necessity for corroboration of accomplice’s testimony, submitted the case to a jury which found defendant guilty. Defendant now contends the trial court erred in admitting into [347]*347evidence Exhibits 1, 2, 3, 4 and 5, contending that they were not properly identified and that they did not tend to connect the defendant with the alleged crime, as required by statute, that they failed to corroborate the testimony of the alleged accomplices, and that they were prejudicial to the defendant. Motions for a directed verdict at the close of the State’s evidence, at the end of all testimony, and a motion for a new trial based upon the same contentions were overruled by the court and these rulings form the basis of the alleged error.

This is a typical accomplice case involving the sufficiency of evidence to warrant submission to a jury. The involved statute of many years standing, now section 782.5, Code of Iowa, 1954, provides: “A conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence which shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.”

I. We have said repeatedly this statute does not require that corroborative evidence go to the whole case, and it is sufficient if some material part of the accomplice’s evidence be corroborated. This may be by direct or circumstantial evidence which shall tend to connect the accused with the commission of the offense charged. State v. Dorsey, 154 Iowa 298, 134 N.W. 946; State v. Arhontis, 196 Iowa 223, 194 N.W. 209; State v. Thom, 236 Iowa 129, 17 N.W.2d 96.

Here the testimony of the two alleged accomplices, Kurtz and Bergman, was substantially as follows: They were invited by the defendant to “make some easy money” by selling merchandise obtained by breaking into business establishments. They drove to Portsmouth, Iowa, in defendant’s car on the night of the robbery and defendant took a tire tool and screwdriver from the car to use in gaining entrance to the hardware store. Several boxes of appliances, including one camera similar to that found in defendant’s car, guns, razors, and other merchandise, were removed from the store by defendant and loaded into the automobile by the accomplices. Among the articles brought out by the defendant was a quart thermos bottle similar to one he already had in the car. He placed it on the ledge of the back seat of the car stating “I Will keep this in my ear.” The camera (Ex-[348]*348Mbit 1) was a camera wMch accomplice Kurtz said “looks just * * * like it would be one that was taken from the hardware store at the time.” Upon their return to Omaha defendant sold the loot with the exception of a few items, and divided the money which netted each about $110. By agreement Bergman kept the camera (Exhibit 2) found in his apartment, and admitted it was taken from the store in Portsmouth with the other merchandise.

The sheriff testified he examined the premises the morning after the robbery and discovered marks on the door and door-frame which he determined were made by a flat tire tool and a %6-inek screwdriver. He determined entrance was gained by forcing the door in this manner.

The store proprietor, Mr. Rosenthal, testified Exhibit 2 “is the same type camera” that was taken that night, and he recognized it as a carton from his store. However, he also said he could not be positive the camera in the carton was the same camera stolen from the store on January 27. Exhibit 5 was a carton of flash bulbs which the owner identified as a carton from his store because he recognized the “price marking on it” as being made by himself. Several cartons of that kind were taken from the store on January 27, but he could not say positively when this one left the store.

As to the other carton of bulbs (Exhibit 4), the owner “couldn’t be positive” that he marked its price with a red pencil, and said he did not believe it could be his writing. Exhibits 1 and 3 the owner could not positively identify as having ever been in the store, though he was positive he had cameras similar to Exhibits 1 and 2 in the store on the night of the theft, and they were gone the next morning. Rosenthal further testified the condition of the front door showed it had been jimmied with a bar and screwdriver.

Mr. Gallagher, the store clerk, testified he opened the store January 27,1953, and discovered the theft. He identified Exhibit 2 as a camera set missing from the store, recalling the flash bulbs were removed from the carton about Christmas time. He further stated the carton bore the price mark placed thereon by him a few days before Christmas, 1952. It was in the store the night [349]*349before and missing the next morning. Exhibit 3, the thermos bottle, he remembered as to kind and type for it was a special order never delivered, and was thereafter displayed with the other appliances later found missing. However, he was not sure it was there the day before. We have set out enough to indicate the general character of the evidence.

It must be clear that with the exception of Exhibits 2 and 5, positive identification is lacking. The missing items referred to as identical or similar to Exhibits 1, 3 and 4 were in the store prior to the theft and were gone the next day. Obviously many items of merchandise today have little or no distinguishing mark, and any attempt to positively identify them would be questionable if not dishonest. Positive identification, though helpful, is not absolutely necessary, for other circumstances may aid in generating a jury question as to their actual identity.

The trial court as ,a matter of law here determined such evidence did tend to connect the defendant with the commission of the offense and submitted to the jury the question as to whether or not the articles were in fact those taken from the store. If the court’s ruling was correct and if the jury believed these articles were in fact the ones taken from the store on the night in question, that fact would provide the corroboration required to justify the consideration of the testimony of the accomplices, and sustain the verdict of guilty.

II. Defendant’s primary complaint is that the evidence failed to establish the fact the articles found in his possession were stolen from the store. We have held many times that in establishing such a fact the evidence need not be direct, but may be circumstantial. State v.

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Bluebook (online)
67 N.W.2d 579, 246 Iowa 344, 1954 Iowa Sup. LEXIS 531, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gates-iowa-1954.