State v. Boyd

• Decision Date: 15 December 1922
• Docket Number: No. 34684.,34684.
• Citation: 191 N.W. 84,195 Iowa 1091
• Parties: STATE v. BOYD.
• Court: Iowa Supreme Court

195 Iowa 1091

191 N.W. 84

STATE

v.BOYD.

No. 34684.

Supreme Court of Iowa.

Dec. 15, 1922.

Appeal from District Court, Jefferson County; D. M. Anderson, Judge.

Defendant was indicted by the grand jury of Jefferson county, charging the crime of receiving stolen property. The jury returned a verdict finding defendant guilty. Judgment was entered on the verdict sentencing the defendant, under the statute, to five years' imprisonment, from which judgment defendant appeals. Reversed and remanded.Lloyd L. Duke, of Ottumwa, for appellant.

Ben J. Gibson, Atty. Gen., and Ralph H. Munro, Co. Atty., of Fairfield, for the State.

ARTHUR, J.

[1] The state introduced testimony tending to show––which we think was sufficient to support the verdict––that in December, 1920, defendant arranged with a young man by the name of Glenn Hoskinson, who had been a resident of Fairfield in Jefferson county, and who at that particular time was living in Muscatine, Iowa, where he had been employed as a button cutter, to engage in the business of breaking into box cars containing shipments of merchandise, and deliver articles taken from these cars to the defendant's store at Fairfield, Iowa; that it was agreed between Hoskinson and defendant that the defendant should pay one–half of the wholesale price for any articles delivered to him that could be used by him in his (defendant's) store; that shortly after the arrangements were made. Hoskinson went to Muscatine and formed a partnership with a young man by the name of Dick Worley, who had some previous experience in breaking into box cars, and that Hoskinson and Worley proceeded to carry out the plans suggested by defendant in his talk with Hoskinson; that Hoskinson and Worley first broke into a car in the yards at Muscatine and took therefrom several cartons of shoes and packages of tobacco; that they hid these articles on an island in the Mississippi river, and then went to Fairfield where defendant was advised of the nature of the articles taken by them from the car, and that defendant sent his driver, with his delivery truck, to Muscatine, where the goods so taken were packed up and hauled and delivered to defendant's store in Fairfield; that defendant there and then paid Hoskinson and Worley for the goods then delivered, deducting $10 for the use of the truck in hauling the goods to defendant's store; that this transaction was about the 1st of March, 1921; that shortly after that Hoskinson and Worley broke open a car of the Burlington railroad and took out some Velvet tobacco and delivered it to defendant at his store, for which defendant paid him $65 or $70.

Hoskinson testified that the next time he and Worley broke into a car was at Washington, Iowa, and that it was a merchandise car of the Milwaukee railroad, from which they took five cases of shoes; that he notified defendant by telephone of their getting the shoes, and defendant sent his car over to Washington, and he and Worley loaded the shoes into the car and took them to defendant's store, where the shoes were delivered to defendant, and defendant paid them about $80 for them, and took out $10 for the use of his car. The shoes obtained by breaking into the Milwaukee car at Washington, Iowa, are the shoes that defendant is charged in the indictment with having received.

There was further evidence tending to show that several cars were broken into by Hoskinson and Worley and goods taken out and sold and delivered to defendant at his place of business in Fairfield, Iowa. It appears without dispute that Hoskinson sold and delivered to defendant at his store goods that had been stolen from cars that had been broken into, including the merchandise described in the indictment.

It is the defendant's claim that the goods were purchased from Hoskinson without any knowledge on the part of the defendant that they were stolen; and it is also claimed by defendant that most of the goods purchased from Hoskinson were purchased by defendant's wife, who seems to have been in charge of the store a considerable part of the time, and that defendant had no knowledge of the larceny of the merchandise so purchased. The defendant's wife, as a witness for the defense, claimed that she believed Hoskinson to be a traveling salesman, representing wholesale and jobbing houses carrying the class of merchandise which had been sold by him to them.

Hoskinson was a witness for the state, and testified in detail as to the arrangements made between the defendant and himself, whereby he was to engage in breaking open cars containing shipments of merchandise and deliver the articles taken to defendant's store.

Appellant assigns as error refusal of the court to grant a new trial, on several grounds which we will consider.

[2] II. Appellant assigns as error permitting the introduction of evidence by the state to show that defendant received stolen property at times subsequent to the time charged in the indictment. Admission of such testimony was not error. We have frequently held that evidence of a similar transaction is admissible for the purpose of showing guilty knowledge on the part of the defendant that the goods which he received or concealed had been stolen. State v. Scott, 136 Iowa, 152, 113 N. W. 758;State v. Levich, 128 Iowa, 372, 104 N. W. 334.

[3][4] III. Appellant contends that Hoskinson was an accomplice of the defendant, and for that reason his evidence required corroboration. We have a number of times said that, where the charge is receiving stolen property, the original thief is not an accomplice, and it is therefore unnecessary that his testimony should be corroborated to support a conviction. State v. Scott, supra; State v. Feinberg, 145 Iowa, 329, 124 N. W. 208. However, there was an abundance of corroboration on the testimony of Hoskinson. Finding of the goods in question Hoskinson took from the car in the store of the defendant, and the acceptance of their delivery, as detailed by other witnesses, was ample corroboration, if such were necessary.

[5] IV. Counsel for appellant argues that the finding of the jury was not in accordance with the evidence. The verdict of the jury reads as follows:

“We, the jury, find the defendant, A. J. Boyd, guilty of the crime of receiving stolen goods, and find the value of the property so received at $344.10.”

The criticism made of this verdict is that it did not contain the word “knowingly,” the claim of appellant being that the defendant had to receive the goods knowing that they were stolen, and that this was essential in the verdict. It was necessary for the state to prove that defendant received the goods knowing them to be stolen, but it was not necessary for the jury in returning its verdict to incorporate into the verdict all the elements upon which their findings were predicated. All of the essential elements of the crime must be proven, and when a jury returns a verdict of guilty, that means that they have determined that all of the essential elements were presented and proven. There was no error in this respect.

[6] V. It is urged by appellant that the judgment entered is faulty for the reason that defendant was sentenced to the penitentiary “for the full term of five years.” The maximum term for the offense is five years. Our indeterminate sentence law takes care of that feature of the judgment, and any penalty imposed where the offense comes under the indeterminate sentence law, as in the instant case, is superfluous and unnecessary. Defendant's stay in the penitentiary, if he goes there, will neither be prolonged nor shortened, by reason of the statement made in the judgment of the trial court.

[7] VI. A point on which appellant relies for reversal is that, according to the evidence, the appellant is guilty, if guilty of any crime, either as principal or as an accessory before the fact in the burglary itself, instead of the crime charged––that of receiving stolen property. In the case at bar, according to the evidence for the state, defendant induced and procured Glenn Hoskinson to break and enter box cars containing merchandise; that he should procure such merchandise as should be sold in defendant's store; that he should break and enter cars that were in transit from one state to another; that appellant would have his truck sent to the scene of the robberies and have the goods taken therefrom; and that appellant would receive the goods and pay Hoskinson one–half of the wholesale price of all such goods. Counsel for appellant insists that if this evidence be true, then defendant aided and abetted Hoskinson both before and after the fact, and was guilty as a principal in the burglary itself, under Code, § 5299. Counsel insists that defendant must have been indicted, if at all, under the facts, as a principal in the burglary itself. Code, § 5299, reads:

“The distinction between an accessory before the fact and a principal is abrogated, and all persons concerned in the commission of a public offense, whether they directly commit the act constituting the offense, or aid and abet its commission, though not present, must hereafter be indicted, tried and punished as principals.”

It is true, as contended by counsel for defendant, that one who aids and abets is, under this statute, in the same category with one who actually, physically, and manually commits the offense. It is also true that, under the common law, a person who aided and abetted in the commission of a public offense was guilty as an accessory, under some circumstances before the fact, and under others, an accessory after the fact, and it was necessary that the accessory be indicted and tried as such and could not be indicted and tried as a principal. Our statute (the above quoted statute, section 5299) does not, and no statute could, change or abrogate the actual manner of participation of one committing a crime. This statute does not attempt to define any crime. The statute merely abrogates the common law form of...