State v. Barnes, 55539
| Decision Date | 20 December 1972 |
| Docket Number | No. 55539,55539 |
| Citation | 204 N.W.2d 827 |
| Parties | STATE of Iowa, Appellee, v. Robert W. BARNES, Appellant. |
| Court | Iowa Supreme Court |
Richard G. Davidson, Clarinda, for appellant.
Richard C. Turner, Atty. Gen., Fred M. Haskins, Asst. Atty. Gen. and J. C. Irvin, County Atty., for appellee.
Heard before MOORE, C.J., and LeGRAND, UHLENHOPP, REYNOLDSON and McCORMICK, JJ.
Defendant was convicted by jury and sentenced for larceny in the nighttime under Code § 709.4. The determinative issue in this appeal is the sufficiency of the evidence to support the verdict. We find the evidence insufficient and reverse.
In deciding whether there is sufficient evidence to support the verdict we view it in its light most favorable to sustaining the verdict, and we are bound by a verdict supported by substantial evidence and not against its clear weight. State v. Gray, 199 N.W.2d 57, 59 (Iowa 1972).
There is no dispute here as to sufficiency of the evidence to prove that Donald Taylor, a friend of defendant, did commit larceny on the occasion involved. He stole about $95 from Skeeter's Skelly Station in Clarinda at about midnight on May 12, 1971. Defendant claims the evidence is insufficient for the jury to be permitted to find that he aided and abetted Taylor in the theft, the theory under which he was charged, tried and convicted.
The State's theory apparently was that defendant acted as a 'lookout' for Taylor during the theft. Testimony established that defendant, Taylor and two companions had been riding around in Taylor's car. They drove onto the gas station drive just as the lone attendant, Guy Fielder, was putting a pickup truck inside preparatory to closing. Taylor and defedant entered the station office. Defendant said he entered to buy cigarettes but had to wait for Fielder in order to get change. He stood facing a glass door, looking toward the bay area where Fielder was parking the truck. He said he thought Taylor had entered the office to use the bathroom and he did not pay any attention to what Taylor did.
Fielder had left a money bag near the cash register. He saw Taylor (whom he did not know) taking money from it. He also saw defendant (whom he knew) looking out the door. Defendant's back was to Taylor, who was four or five steps away. Fielder hurried to the office, and defendant stumbled as the attendant pushed through the swinging door at which he had been standing. Taylor was not in the office when Fielder entered. He fled on foot.
Defendant asked for change for cigarettes, and upon inquiry disclaimed knowledge of any theft. After some equivocation he named Taylor as having entered the office with him. Fielder told him he would have to wait for his change. Although defendant left the premises, he returned shortly thereafter, received his change for cigarettes, purchased them, talked with the police and then left. We are unable to find anything inculpatory in the circumstances of his departure and return. There is no claim or evidence of flight.
He later gave a statement in which he said he had turned around as Taylor was leaving the office, and Taylor had said he would meet him at the car.
There is no evidence nor does the State claim that the two companions of Taylor and defendant had anything to do with the theft. The only one of them to testify at trial said the sole discussed purpose for stopping at the gas station was to permit defendant to purchase cigarettes. Taylor did not testify.
The State's case rests almost entirely upon defendant's presence and location in the office at the time of the theft. There is not direct evidence he saw the theft or even knew of it until after it occurred. His stated purpose for his presence and location was lawful.
One cannot be convicted of crime upon a theory of aiding and abetting unless there is sufficient evidence to show he assented to or lent countenance and approval to the criminal act either by active participation in it or by some manner encouraging it Prior to or At the time of its commission. State v. Kittelson, 164 N.W.2d 157, 161--165 (Iowa 1969). Knowledge is essential; however, neither knowledge nor presence at the scene of the crime is sufficient to prove aiding and abetting. State v. Daves, 259 Iowa 584, 586, 591, 144 N.W.2d 879, 881, 884 (1966).
A ...
To continue reading
Request your trial
-
State v. Neiderbach
...neither knowledge nor presence at the scene of the crime is sufficient to prove aiding and abetting.' " Id. (quoting State v. Barnes, 204 N.W.2d 827, 828 (Iowa 1972)). We have previously held that " '[e]vidence of adefendant's presence, companionship, and conduct before and after the offens......
-
State v. Neiderbach
...neither knowledge nor presence at the scene of the crime is sufficient to prove aiding and abetting.’ ” Id. (quoting State v. Barnes, 204 N.W.2d 827, 828 (Iowa 1972)). We have previously held that “ ‘[e]vidence of a defendant's presence, companionship, and conduct before and after the offen......
-
Fryer v. State
...lent countenance or approval by active participation in it or by some manner encouraging it prior to its commission. See State v. Barnes, 204 N.W.2d 827, 828 (Iowa 1973). While retrieving their shotguns, the brothers discussed their plans to take the marijuana by force. Upon returning to th......
-
State v. Hearn
...however, neither knowledge nor presence at the scene of the crime is sufficient to prove aiding and abetting.” State v. Barnes, 204 N.W.2d 827, 828 (Iowa 1972). A defendant's participation may, however, be proven by circumstantial evidence. 1 Doss, 355 N.W.2d at 878. Hearn argues the eviden......