State v. Agee
| Citation | 136 N.W.2d 419,257 Iowa 1345 |
| Decision Date | 29 July 1965 |
| Docket Number | No. 51501,51501 |
| Parties | STATE of Iowa, Appellee, v. Larry L. AGEE, Appellant. |
| Court | Iowa Supreme Court |
Ben E. Kubby, Des Moines, for appellant.
Lawrence F. Scalise, Atty. Gen., Harry Perkins, Jr., County Atty., and James D. McKeon, Asst. County Atty., for appellee.
Defendant was convicted of uttering a forged instrument as defined in section 718.2, Code of Iowa, 1962, I.C.A. He appeals, urging the insufficiency of the evidence of identity beyond a reasonable doubt, error in allowing a witness to testify in violation of an order excluding witnesses, error in giving a flight instruction because not warranted, and error in the alibi instruction.
The state's theory of the case was defendant together with others stole payroll checks of the Colonial Baking Company, endorsed the name of the payee-employee of a check issued to Merrill R. Albright in the sum of $103.18 and defendant cashed such check at the Hy-Vee Store at East 26th and Euclid in Des Moines. The evidence the checks were stolen and the endorsement on the check in issue was not that of the payee of authorized by him is undenied.
I. The evidence bearing on the identity of defendant as the man who cashed the check is as follows. A bakery employee testified defendant resembled one of the men he saw take the bag containing the checks at the bakery. A lady cashier at the Hy-Vee Store testified defendant was the man who cashed the check. She identified defendant in a 'line up' conducted at the police station. Her direct testimony is positive. Defendant's attack is directed to her cross-examination wherein she was unable to remember in detail certain characteristics of defendant and his dress, her apparent inconsistent statements at the preliminary hearing and the short time she observed the man when cashing the check, and claimed infirmities in conducting the line up. One other man testified defendant was the man who cashed one of the stolen payroll checks at his place of business and another testified defendant is the one who attempted to cash one of such checks at his place of business. It is sufficient to say of the evidence bearing on the identity of defendant that the cashier at the Hy-Vee Store was in a position to see defendant at the store, that she did identify him in the line up. She was in a position to know. The able and thorough cross-examination by defense counsel did no more than raise matters going to the accuracy of the witness's memory and the short time she had to observe the man cashing the check. These are matters for the jury in determining her credibility. The evidence of the other witnesses tends to support the cashier. It is a fact of human experience that a person may be recognized and identified by his composite appearance when the observer does not remember details of appearance.
The evidence was substantial, and, if believed, was sufficient to support a conviction beyond a reasonable doubt. State v. Estrella, Iowa, 133 N.W.2d 97, 99-100; and State v. Poffenbarger, 247 Iowa 552, 555, 74 N.W.2d 585.
II. The trial court sustained a motion to exclude the witnesses and admonished counsel to keep his own witnesses out of the courtroom except when testifying. One of the witnesses the state used in rebuttal was in the courtroom for about five minutes while another witness was testifying. The trial court allowed this witness to testify. He testified defendant cashed one of the stolen Colonial payroll checks at his gas station on January 17, 1964, at 6:30 a. m. the morning of the day he cashed the check on which he was being prosecuted.
Defendant contends it was an abuse of discretion to allow the witness to testify after violating the exclusionary rule and because such evidence showed another crime and was impeachment testimony as well as showing a course of conduct. He concedes ordinarily allowing such a witness to testify is discretionary.
In this case the record discloses the witness was in the courtroom for about five minutes to determine whether the defendant was the man who cashed the check at his station. The testimony he heard could not...
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Johnson v. Bennett
...divided 5 to 3 with a vigorous dissent championing the dissenting point of view expressed in 1881 in Hamilton. In State v. Agee, 257 Iowa 1345, 136 N.W.2d 419, 421 (1965), the opinion observed, "A majority * * * of this court are still of the view * * * the instruction as given is correct."......
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State v. Ford, 52205
...the evidence thereof should not have been received for the reasons heretofore considered and held to be without merit. State v. Agee, 258 Iowa ---, 136 N.W.2d 419, 421, holds a like contention as to a similar instruction by the same judge on the trial of one of those who escaped from the sa......
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