State v. Theodore

• Decision Date: 02 May 1967
• Docket Number: No. 52368,52368
• Citation: 260 Iowa 1038,150 N.W.2d 612
• Parties: STATE of Iowa, Appellee, v. Peter George THEODORE, Appellant.
• Court: Iowa Supreme Court

Page 612

150 N.W.2d 612

260 Iowa 1038

STATE of Iowa, Appellee, v. Peter George THEODORE, Appellant.

No. 52368.

Supreme Court of Iowa.

May 2, 1967.

Rehearing Denied July 10, 1967.

McCarty & Hart, Davenport, for appellant.

Richard C. Turner, Atty. Gen., Ronald A. Riley, Stephen C. Robinson, Asst. Attys. Gen., and David P. Miller, Scott County Atty., for appellee.

STUART, Justice.

Defendant was convicted of conspiracy to commit a felony (larceny and/or embezzlement) in violation of section 719.1, Code of Iowa. He has appealed from the judgment entered on the jury verdict.

For three years prior to October 30, 1964 he had hauled meat products from the Oscar Mayer packing plant in Davenport to its plant in Now Orleans, Louisiana with his truck and trailer. While the truck was being loaded on October 29th and 30th, 1964 a company official received information which caused him to investigate the contents of the trailer.

After the trailer was loaded and ready to go, it was weighed and found to exceed the weight called for in the bill of lading. The seal was broken and the contents removed and audited. It was discovered the truck contained 91 boxes of loins, 5 boxes of cooked hams, 3 boxes of smoked hams and 1 box of shankless hams which were not included in the invoices or bill of lading.

Under company procedure, the truck operator had nothing to do with the loading of his truck. This was done by company employees. The loading crew testified they loaded meat on defendant's trailer not called for in the invoice at his request. They testified they had done so on former occasions and defendant had paid them for it. They pleaded guilty to conspiracy and were given 3 year suspended sentences.

I. Defendant claims he was entitled to a directed verdict or judgment notwithstanding the verdict on the ground that there was no corroboration of the testimony of accomplices as required by section 782.5, Code of Iowa, which 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 shows the commission of the offense or the circumstances thereof.'

It has been held that the declarations of a co-conspirator or codefendant can have no greater force than the testimony of an accomplice or codefendant, and hence evidence of statements of a co-conspirator or codefendant tending to inculpate accused is not, in the absence of corroborative evidence, sufficient for a conviction.' 22A C.J.S. Criminal Law § 785, p. 1191. See State v. Davis, 230 Iowa 309, 316, 297 N.W. 274.

The state recognizes the requirement of corroboration but claims there is sufficient evidence other than the testimony of the co-conspirators to meet the statutory requirement.

'* * * the corroboration need not be of every material fact testified to by an accomplice, but is sufficient if it can fairly be said that the accomplice is corroborated in some material fact legitimately tending to connect the defendant with commission of the offense. (Citing cases)' State v. Geier, 249 Iowa 475, 479, 87 N.W.2d 318, 321; State v. Latham, 254 Iowa 513, 515, 117 N.W.2d 840.

'The evidence adduced to corroborate an accomplice need not be strong, and any corroborative evidence legitimately tending to connect the accused with the commission of the crime and thereby lend support to the credibility of the accomplice is sufficient. It is not necessary that the testimony offered as corroboration be entirely inconsistent with innocence. (Citing cases)' State v. Clay, 222 Iowa 1142, 1146, 271 N.W. 212, 215, quoted with approval in State v. Latham, supra, 254 Iowa loc. cit. 516, 117 N.W.2d 840; State v. Proost, 225 Iowa 628, 631--632, 281 N.W. 167.

'* * * the entire conduct of the defendant may be looked to for corroborating circumstances.' State v. Michaels, 95 Ariz. 374, 390 P.2d 904; State v. Latham, supra.

John Robert McCommon, a truck operator, testified he had known defendant for two years. He recalled meeting defendant near Chester, Illinois in October 1964. Defendant told the witness there was some stuff on his truck that he wanted to get off. When McCommon stopped at Roy's truck stop near New Madrid, Missouri for propane, defendant and his assistant also came in. They broke the seal on McCommon's truck and took off 5 boxes of ribs and put them on defendant's trailer. 'They closed the door and struck the seal in there, and he (defendant) told me there was five boxes of bacon on there and the hams, that I could have them, and I made a statement to them I didn't want them, and he didn't snap the seal, and I snapped the seal back--the one that was on, that they put on, I snapped it, and then I went on to Little rock and unloaded and came back to Memphis and dropped my trailer at Memphis and the meat was still on the trailer.'

Mr. Maas, floating transportation manager for Oscar Mayer, testified of a telephone conversation with defendant on November 4, 1964. 'Mr. Theodore called him and said he was very much concerned about the people involved in the particular incident and he wanted to know if there was something he could do to take care of the incident so that the people that were involved would not get implicated more and lose their jobs. $3500 was mentioned.'

This phone conversation was confirmed by Mr. Hartung, operations manager for Oscar Mayer, who heard it over an extension phone. However, he placed the date as October 30th or 31st. He testified: 'Peter Theodore indicated to Mr. Maas that he was very concerned over the difficulties which our terminated employees were encountering on a personal basis because of the loading incident and that he was so concerned that he would be willing to make payment to the company of several thousand dollars of savings which he possessed if we did not in fact prosecute those employees.'

We believe these items of evidence sufficiently corroborate the testimony of the co-conspirators to connect defendant with the conspiracy by evidence outside the conspirators themselves. This evidence alone would not be enough to convict but is such that it lends credibility to the testimony of the accomplices. The jurors then would be free to believe all of the testimony of the co-conspirators if they wished.

Defendant discounts the importance of the telephone conversation. 'This offer, humane or even quixotic, does not corroborate anything. The fact that the appellant had a compassionate feeling for the men he had come to know at Oscar Mayer's and a desire to help them in their trouble does not impute a bad or criminal motive to him.' We do not agree.

It was for the jurors to consider this evidence and determine for themselves the reasons for the phone call. They could have concluded it was 'humane or even quixotic'. They could also have considered this offer as evidence that he was involved in the conspiracy. Defendant had no obvious close connections with the employees he sought to help. There was no discernible reason for him to offer his life savings to Oscar Mayer if it would take no action against them. It is not unreasonable to conclude under these circumstances that he had a personal interest in seeing the charge dropped. Such an offer tends to connect defendant with the conspiracy even though it is not entirely inconsistent with his innocence.

II. Defendant claims McCommon's testimony was improperly admitted into evidence because it was irrelevant and because evidence of other crimes separate and distinct from the one with which he was charged could not be given in the trial of the latter.

We believe this testimony was relevant to the issues present here. Outside evidence was necessary to connect defendant with the conspiracy which had been established. The record would have been stronger had it been shown the meat taken from McCommon's truck came from the Oscar Mayer plant. However, the evidence was sufficient to connect this defendant with a scheme whereby meat, not covered by invoice or bill of lading, was placed on a truck to be removed later by breaking the seal before the destination was reached. This shows conduct similar to that which defendant is accused of conspiring in here. We believe the testimony was relevant and furnished corroboration for the testimony of the co-conspirators.

'The test of admissibility of evidence is whether it has a legitimate bearing upon any point in issue, and should not be excluded because it shows or tends to show the commission of another crime. (Citing cases)' State v. Meeks, 245 Iowa 1231, 1243, 65 N.W.2d 76, 82.

In State v. Keul, 233 Iowa 852, 855--856, 5 N.W.2d 849, 852, the state was allowed to introduce certain evidence of alleged transactions between those accused of conspiracy and third parties similar to the transactions upon which the charge was based. We said: 'Sime of this evidence may have tended to show the commission of offenses other than that for which appellant was on trial. The general rule is that the State is not permitted to introduce evidence to prove the accused has committed offenses not charged in the indictment. To this rule there are certain exceptions one of which is that evidence bearing upon the question of intent is not rendered inadmissible because it may incidentally tend to prove defendant's guilt of some other crime. In this case...