State v. Cofer

• Decision Date: 15 October 1952
• Docket Number: No. 7858,7858
• Citation: 73 Idaho 181,249 P.2d 197
• Parties: STATE v. COFER.
• Court: Idaho Supreme Court

Page 197

249 P.2d 197

73 Idaho 181

STATE v. COFER.

No. 7858.

Supreme Court of Idaho.

Oct. 15, 1952.

Clark & Holladay, Gus Carr Anderson, Pocatello, for appellant.

Robert E. Smylie, Atty. Gen., J. R. Smead, Leonard H. Bielenberg, Assts. Atty. Gen., Hugh C. Maguire, Jr., Prosecuting Atty., Pocatello, for respondent.

THOMAS, Justice.

The defendant, Joe Cofer, was charged with and convicted of armed robbery of Okay Food Store in Pocatello, Idaho, on June 30, 1951. From the judgment the defendant appealed.

On the evening of June 30, 1951, between the hours of ten o'clock and eleven o'clock P.M., the store was robbed by two armed men who were masked.

At the time the store was closed to the public; some of the employees were engaged in checking the day's receipts in the back room of the store, which is separated from the main portion by a partition, while others in the front part of the store were engaged in taking inventory.

The robbery took place in the back room of the store out of view of all the employees except four of them who, at different times, entered the back room to participate in checking the day's receipts and were each struck several blows with the butt of a gun and repeated threats made upon their lives. More details in these respects will be set forth in connection with the treatment of certain assignments of error.

It was not known how or when the robbers entered the store. They departed with approximately $2914, consisting of currency and silver of various denominations.

Prior to the robbery and on June 27, 1951, the defendant and another man, who requested accommodations for four days, registered at the White Motel in Pocatello, Idaho. The defendant was registered under the name of Joe Harrington and the other party under the name of Larry Blackwell. As was the usual practice the owner of the Motel requested the license number of the car and was advised that it was 3005210, Denver. The owner being suspicious, personally checked the license number and determined that it was 30-1502, Montana, and so indicated it on the register. The owner further made the observation that they were driving either a 1949 or 1950 maroon Ford. The two men were requested to and did check out the next morning.

That same morning the two men appeared at another motor court where the defendant registered under the name of Joe Cofer. At this time they were driving either a 1949 or 1950 dark maroon Ford bearing license number 30-1502, Montana. They occupied these latter accommodations until somewhere between 4:30 and 8:00 o'clock on the evening of the robbery.

During the evening of the robbery a witness who lived in and owned a duplex across the alley from the rear of the store, observed a dark colored 1949 or 1950 Ford parked in the alley. He recalled that the first two numbers of the license plate were 30, and at first thought the outline of the license plate was that of the State of Tennessee, but later satisfied himself that it was a Montana license plate. Later, while he was in his home, he heard the screech of tires and soon thereafter the sound of police sirens. He left his home and went to the back door of the store, and in so doing noticed that the car had gone and later, upon inspection of the spot where the car had been parked, noticed there were two burnt tire marks.

Following the robbery, road blocks were set up and the sheriff of Bingham county, participating in a road block south of Blackfoot, at about two o'clock A.M., July 1, 1951, stopped a dark colored 1949 Ford traveling north. The sole occupant of the car, by means of his driver's license, identified himself as the defendant and was permitted to pass. The sheriff identified the defendant at the trial.

At about eleven o'clock P.M., July 1, 1951, the police of Butte, Montana, arrested the defendant, who was in possession of a 1949 Ford bearing license 30-1502, Montana, a loaded .38 Iver Johnson revolver, and a sack of money containing $70 in currency and approximately $240 in silver of various denominations. Some of this money was wrapped and some was loose. It was found under the front seat of the car. It was counted in the presence of the defendant at the police station. The defendant, while at the police station in Butte, admitted the ownership of the car, gun, and money, and also that he was in Pocatello on the night of the robbery and that he arrived in Butte the following evening about six o'clock.

On July 3, 1951, Mr. Nelson, Chief of Detectives of the Pocatello police force, conversed with the defendant at Butte, and on several occasions after he returned the defendant to Pocatello. During these conversations the defendant admitted the ownership of the gun and the money found in his car, but denied participation in the robbery.

On the evening of July 3, 1951, after officer Nelson had brought defendant to the police station in Pocatello, Idaho, police officer Hadley conversed at length with the defendant over a period of several hours. Hadley testified that the defendant admitted to him that he was a participant in the robbery with another man whom he knew only by the name of Tom; Hadley further testified that the defendant inquired as to whether or not the charges could be reduced and that he wanted to see if Tom would be apprehended. The defendant did not sign a statement that night. Officer Hadley made a summarized written report of the conversation.

There are six assignments of error; the first one challenges the sufficiency of the evidence to sustain the verdict and all other assignments, which will be hereafter discussed, relate to the admission and rejection of certain evidence.

It is first urged that the evidence is not sufficient to sustain the verdict. This assignment is particularly directed at the credibility of the witnesses and the insufficiency of the evidence to establish the identity of the defendant. Three of the employees of the store who were held as virtual prisoners during the robbery testified as to the identity of the defendant. None of them saw the face of the robber, because he was masked. One of them, Robert Buehler, testified that one of the robbers, whom he identified as the defendant, gave many commands to him and repeatedly threatened his life, all of which took place in his presence for a period of three or four minutes, and that the defendant had an unusual voice with a peculiar accent which left an impression with him, and that when he heard the voice of defendant in the police station later he was positive that defendant was one of the robbers; Buehler was corroborated with reference to the peculiarity of the voice of defendant by officer Nelson, who testified that defendant had an eastern accent and that he would recognize the voice any time even though the defendant spoke out of his sight. Mrs. Nielson, the owner of the first motor court at which defendant was registered, testified that defendant spoke with an accent. Mr. Achenbach, another employee who had ample opportunity to carefully observe the robber, testified that he had long thick hair, combed back and parted in the center and down the middle in the back, and that the hair appeared to be plastered back; he also testified that this particular robber was of a gorilla type with broad shoulders; a few days later, at the police station, he identified the defendant as one of the robbers; he was corroborated in these respects by Mrs. Nielson and officer Sullivan of the Butte police force, and officer Nelson of the Pocatello police force.

It is not necessary that identification be made with reference to any particular facial feature or that the witness saw the face of the accused, but may be made on the basis of other peculiarities such as the voice or general appearance. People v. Wilson, 76 Cal.App. 688, 245 P. 781; Bowlin v. Commonwealth, 195 Ky. 600, 242 S.W. 604; People v. Bailey, 82 Cal.App. 700, 256 P. 281; 22 C.J.S., Criminal Law, § 616, p. 938. This court is unable to find any merit in the contention of the appellant that the testimony of these witnesses is inherently improbable. Appellant was before the jury and the opportunity was afforded the jury to weigh the testimony of the witnesses relative to the identity of appellant in connection with their observation of appellant. Even though this court may feel that the evidence relating to the identity of the accused is not too strong, yet where it is legally sufficient, it is not for this court to interfere with or invade the province of the jury. People v. Coley, 61 Cal.App.2d 810, 143 P.2d 755.

The credibility of witnesses as well as the weight to be given their testimony is exclusively for the jury and it there is sufficient evidence in the record to support the verdict of the jury it will not be disturbed on appeal. State v. Brown, 53 Idaho 576, 26 P.2d 131; State v. Wilson, 51 Idaho 669, 9 P.2d 497; State v. Autheman, 47 Idaho 328, 274 P. 805, 62 A.L.R. 195; State v. Sterrett, 35 Idaho 580, 207 P. 1071; State v. Bouchard, 27 Idaho 500, 149 P. 464.

Appellant assigns as error the admission in evidence of a .38 revolver, Iver Johnson. This gun was found in the glove compartment of the appellant's car in Butte, Montana, some twenty hours after the robbery. Appellant admitted to the officers in Butte, Montana, and to officer Nelson that it was his gun. The serial number of the gun taken from the car was identical with the serial number of the gun admitted in evidence. The witness Robert Buehler testified that the robber with the peculiar voice had a small black automatic during the robbery, but also testified that he was not sure, yet that he knew that it resembled the .38 that he saw at the police station at Pocatello which was introduced in evidence. Witness Achenbach testified that he saw a gun in the possession of the man with the long thick hair, combed back and parted in the center and down the middle in the back, and that he did not really know the difference...