State v. Bales, 48576

• Decision Date: 12 January 1955
• Docket Number: No. 48576,48576
• Parties: STATE of Iowa, Appellee, v. Charles Harlan BALES, Appellant.
• Court: Iowa Supreme Court

Page 95

68 N.W.2d 95

246 Iowa 446

STATE of Iowa, Appellee, v. Charles Harlan BALES, Appellant.

No. 48576.

Supreme Court of Iowa.

Jan. 12, 1955.

Edmund Scarpino and Donald Hise, Des Moines, for appellant.

Dayton Countryman, Atty. Gen., Raphael R. R. Dvorak, Asst. Atty. Gen., and M. C. Herrick, County Atty., Indianola, for appellee.

THOMPSON, Justice.

On the night of December 21-22, 1953, a store building in the town of Lacona in which Kenneth J. Butler operated a produce and feed business was burglarized. There was a breaking and entering of the building, and a safe therein was opened. Within the safe were certain drawers which were opened by use of a metal instrument. From these, or one of them, approximately $200 in currency and coins was taken. Certain marks were left on the drawers which had not been there prior to the break in.

The chief witness for the state was James W. Kepler, who testified that on the night in question he went with the defendant and one Fletcher to Lacona, where he and the defendant broke into the store and the safe, while Fletcher sat in the car outside. His testimony without doubt connects the defendant directly with the burglary and makes him an active participant in it, and it is not contended otherwise. But Kepler was of course an accomplice, whose testimony standing alone would not be sufficient to warrant a conviction. Section 782.5, Code of Iowa 1950, I.C.A., 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.'

Defendant's major complaint is that Kepler's testimony was not sufficiently corroborated. This is his first assignment of error. His only other assignment is that certain exhibits offered by the state, including Exhibit 21, should not have been admitted because they were not shown to be sufficiently connected or identified with the defendant.

I. We find no merit in the complaint of lack of corroboration. Exhibit 21 was a steel punch. This was found in a tool-box in defendant's car, on March 7, 1954. This, it will be noted, was well over two months after the burglary. But so far as the time element is concerned, it affects the weight of the evidence rather than its admissibility. 22 C.J.S., Criminal Law, § 709, note 37. In Kelly v. State, 52 Okl.Cr. 125, 3 P.2d 244, certain exhibits were admitted into evidence which were found on the premises of the defendant several months after the commission of the offense. The Oklahoma Court of Criminal Appeals said: 'The objection of the defendant and his argument in his brief made to the competency and relavancy of this evidence are directed against its weight and not against its admissibility.' The case is directly in point and we think announces the correct rule of law on the question of the time of the finding of Exhibit 21.

Exhibit 21 is of particular significance in the case at bar because it had a peculiarity on one side, where an edge had been turned up. Robert Barton, identification technician for the Des Moines police department, pointed out this fact, and also testified that gouge marks on the boxes in the safe which had been broken into fitted exactly with the peculiar conformation of the end and side of the steel punch, Exhibit 21. He had made photographs of the marks on the boxes to illustrate the manner in which they corresponded to the punch, and expressed the opinion that the punch in question made the marks shown on at least some of the drawers or boxes from the safe.

It will be observed this punch was found in the possession of the defendant. He admitted the tool-box was his, but said he did not know whether the punch in question was his property. His testimony was that he had loaned Kepler the tool-box and contents some days before the date of the burglary, and it was not returned to him until after that time. Kepler, however, says he returned it a few days before December 20th. On this point there was a jury question. The substantial evidence is that an instrument obviously used in the perpetration of the crime was afterward found in the possession of the defendant. Clearly it furnished sufficient corroboration of the testimony of the accomplice Kepler. Having been found in the possession of the defendant, it directly connected him with the burglary, and warranted an inference of his guilt, even apart from the testimony of the accomplice. It was for the jury to say whether it believed his explanation of the loan of the tool-box to Kepler. 12 C.J.S., Burglary, § 59, p. 740.

II. Defendant's only other assignment of error is that Exhibit 21 and other state's exhibits were not sufficiently identified and should not have been admitted in evidence. We have covered this question in Division I, so far as Exhibit 21 is concerned. The other exhibits to whose admission objection was made and denied, and which rulings form the basis of the assigned error at this point, were the other contents of the tool-box found in defendant's car, the sledge found on the premises of the alleged accomplice Fletcher, a brief case or satchel found in Fletcher's car, and certain pictures of the state's exhibits taken by the police technician. It is urged there is no sufficient showing that Exhibit 21 was found in defendant's tool-box. Here defendant overlooks the testimony of R. E. O'Brien, chief of detectives of Des Moines, who said he delivered the box and contents to Sheriff John Taylor, of Warren County, who in turn testified that he received Exhibit 21 from O'Brien. This exhibit was amply identified.

It is true as to the other punches and the remainder of the contents of the tool-box, the gloves, and the satchel found in defendant's car and in the tool-box, there is no one who said they were the identical instruments or articles used in the...