State v. Davis

• Decision Date: 10 February 1931
• Docket Number: 40344
• Citation: 234 N.W. 858,212 Iowa 582
• Parties: STATE OF IOWA, Appellee, v. FLOYD DAVIS, Appellant
• Court: Iowa Supreme Court

234 N.W. 858

212 Iowa 582

STATE OF IOWA, Appellee, v. FLOYD DAVIS, Appellant

No. 40344

Supreme Court of Iowa, Des Moines

February 10, 1931

REHEARING DENIED MAY 6, 1931.

Appeal from Clarke District Court.--H. H. CARTER, Judge.

Prosecution under information of the County Attorney charging that the defendant did aid in concealing stolen property, to wit, a red cow to the value of $ 80.00 in violation of the provisions of Section 13042 of the Code. Upon a verdict of guilty, judgment was entered, from which the defendant has appealed.

Affirmed.

O. M Slaymaker and R. E. Killmar, for appellant.

John Fletcher and E. K. Jones, for appellee.

EVANS J. FAVILLE, C. J., and MORLING, KINDIG, and GRIMM, JJ., concur.

OPINION

EVANS, J.

The crime charged, if such, originated on the night of July 24, 1929. On that night a cow was stolen from a farm near Winterset in Madison County, and conveyed by truck to the farm of the defendant in Clarke County near Osceola. The cow was kept in apparent concealment on the defendant's farm until the morning of July 26, at which time she was placed by the defendant in a neighbor's pasture a mile away. This act on the part of the defendant was stimulated by the fact that the prosecuting officials of Clarke County were already on the trial of the larceny and had been on such trail since the morning of July 25. Under the evidence for the State five persons were involved directly or indirectly in the larceny. The defendant himself was a farm renter in Clarke County a few miles distant from Osceola. On and before July 24, 1929, he was engaged with his teams in highway construction under employment by contractors. In the late afternoon of that day a group of four persons came into the town of Osceola and sought his temporary aid and service. These were, John A. Davis, and Ethel Gray Davis, his wife, and Albert Gray, his father-in-law, and Earl Anderson. The automobile in which they had come had become disabled and was awaiting repairs. They represented to the defendant that they had a truck which they had left at the home of one Harry Gray, two miles distant from the town of Lorimor. They requested that he take them to such destination for the purpose of getting their truck, and this request was complied with by the defendant. They all rode together in the defendant's automobile to the home of Harry Gray (in no manner connected with, or related to, Albert Gray). They there obtained the truck leaving the home of Harry Gray at about nine o'clock. This truck carried a tight box about 4 1/2 feet high and was equipped with a device which could be conveniently used as a loading chute for stock. The party went out into the night on a foraging expedition and in the direction of Winterset in Madison County, which adjoins the county of Clarke on the north. The truck was occupied by Albert Gray and Earl Anderson, and was preceded in the drive by the other three parties in the defendant's automobile. One stop was made at one farm and a barn was visited by some of the men, who later retreated therefrom with some haste and after some discovery. Proceeding further in the general direction of Winterset, some cattle were observed in a pasture. From this pasture the cow in question was taken and loaded into the truck, with the aid of the loading device therein contained. It was then arranged that the cow should be taken to the home of the defendant by Gray and Anderson. A note to his wife was written by the defendant, and put in the hands of Gray and Anderson, which note directed the wife to have the cow placed in the "northwest stall" in the barn and to give the men a breakfast. The named men delivered the cow according to these directions and the wife prepared the breakfast at two o'clock A.M. From the scene of the larceny the other three members of the party returned to Osceola in the defendant's car. The four members of the party other than the defendant were arrested on the following day, July 25. At a later time prosecution of the defendant was instituted. The other members of the party were first tried and convicted, the trial of the defendant being the last in the series. J. A. Davis is not related to the defendant, Floyd Davis, but they had been acquainted for several years. Where J. A. Davis and wife and father-in-law came from, or where they reside, or what other purpose, if any, brought them to the town of Osceola, is not disclosed in the record. Their truck carried a Minnesota license and this is the only suggestion whatever of their place of abode. Earl Anderson joined the Minnesota trio at Stratford, near Boone, a few days before July 24. He is referred to in the testimony of the defendant as the "cross-eyed boy". He was convicted upon a plea of guilty and paroled. He was thereupon used by the State as a witness. His testimony carries the infirmity of self-stultification and the qualified disability of an accomplice, as a witness. His testimony furnished the details of the larceny. The fact that the cow was stolen, however, is accepted by the defense as a verity. No argument is directed to the contrary. The testimony of Anderson is abundantly corroborated so far as the requirements of the statute are concerned. The defendant became a witness in his own behalf. His explanation of his connection with these parties, is substantially and briefly indicated in a written statement made by him to the public officials on July 26, 1925, as follows:

"I, Floyd Davis, state that on Wed evening July 24th, 1929, J. A. Davis, a woman whom he said was his wife, an old man by the name of Gray and a small cross-eyed fellow were taken by me in my automobile to Harry Grays west of Lorimor Iowa; that there they had a truck and it was my purpose in taking them there so they could get the truck as they told me that their automobile was in the garage for repair; all four of them and myself rode in my automobile to the Gray place west of Lorimor. That on the road to Lorimor they all talked to me about having a cow that they wanted to sell to me; old man Gray said that the cow was over to his place, he indicating to me that he lived near Winterset, Iowa; they told me that they had taken this cow in on a trade; I mentioned to them that the cow might be a stolen cow and they stated that they had taken her in on a trade; that I did not see the cow at Harry Gray's; they asked me seventy-five dollars for the cow; they told me, that is, John Davis and old man Gray told me that the cow would weigh about one thousand pounds; I told them that if the cow was as described by them that I would take the cow and pay them Saturday, July 27th, when I got my check from the road work; they, old man Gray and John Davis told me that they would sell her that way and that they would bring her to my place that night; that John Davis, his wife and myself left the Harry Gray farm that night ahead of old man Gray and the cross-eyed boy who was with the truck; that I do not know which way the truck went from the Gray place; that John Davis, his wife and myself came back to Osceola, and I did not see the old man and the cross-eyed boy any more that night; the next morning when I came home I saw the cow the first time, and she was in the barn where I had told them to put her; the cow remained in the barn until yesterday evening when I came back from Osceola; that I became suspicious about the cow and to get her off of the premises I drove her down the road west and into Clell Bell's pasture. I put a wire yoke, made out of barb wire on her, so that she could not get out of the pasture and to prevent her from coming back to my place as I did not want the cow to come back to my place; that this cow was a red cow with one short stubby horn and is the cow that I went to the Bell pasture with J. H. Lewis and pointed out to him as the cow which was brought to my place as heretofore referred to; that I have known John Davis for a number of years; that none of the parties informed me as to where they got this cow that was brought to my place."

The foregoing is a sufficient indication of the general character of the evidence to enable an understanding of the assignments of error and the grounds thereof.

I. The first assignment of error laid by the appellant is directed to the proposition that the evidence of Anderson shows the defendant to have been guilty of the larceny and being guilty of the larceny he could not be convicted of the crime of concealing or aiding the concealment of the property which he himself stole.

The offense charged against the defendant is defined by Section 13042. This statute sets forth three forms of offense: (1) buying stolen property; (2) receiving stolen property; (3) concealing stolen property; all with knowledge that it was stolen. These defined offenses bear a strong analogy to the nature of an accessory to an offense under common law. At common law it was requisite that an accessory be prosecuted as such and not as a principal. It was also requisite in the trial of an accessory that proof of the prior conviction of the principal be made. Under modern statutes, and under our own, the distinction of method of prosecution as between a principal and an accessory, has been abolished. The modern requisite is that an accessory must be prosecuted as a principal and not otherwise; and he may be so prosecuted without waiting for the conviction of the principal. Section 13042 proceeds along the same line of progress in criminal procedure. It defines as separable offenses certain wrongful acts which usually follow the principal offense and which at common law would render the perpetrator an accessory after the fact. Under Section 12895, Code, 1927, it is provided that an accessory before the fact must be indicted, tried, and punished as a...