State v. Dewey

• Decision Date: 31 July 1974
• Docket Number: No. 56436,56436
• Citation: 220 N.W.2d 629
• Parties: STATE of Iowa, Appellee, v. Joseph DEWEY, a/k/a George Franklin, Appellant.
• Court: Iowa Supreme Court

Page 629

220 N.W.2d 629

STATE of Iowa, Appellee, v. Joseph DEWEY, a/k/a George Franklin, Appellant.

No. 56436.

Supreme Court of Iowa.

July 31, 1974.

Simon W. Rasche, Jr., Clinton, for appellant.

Richard C. Turner, Atty. Gen., G. Wylie Pillers, III, County Atty., for appellee.

Heard by MOORE, C.J., and MASON, REES, REYNOLDSON, and McCORMICK JJ.

MOORE, Chief Justice.

Defendant was charged, tried, convicted and sentenced for the crime of assault with intent to commit robbery in violation of Code section 694.7. He has appealed. We affirm.

The record includes substantial evidence that about 9:30 p.m., March 27, 1972 defendant drove one James Coy to Paul's Discount Store in Clinton, Iowa. Defendant stopped his Cadillac automobile in the parking lot. Coy went to the rear of the store. As Jackie Ellerbrook, store manager, proceeded from the closed and locked store toward his parked car Coy accosted him at gun point. In response to Coy's questions Ellerbrook admitted being the manager with keys to the store and that probably all other employees had departed. Coy demanded 'big money--seven or eight thousand dollars. At Coy's insistence and after threats of physical harm Ellerbrook agreed to return and open the store door. When the door was opened Ellerbrook advised Coy the burglar alarm had gone off and the police would be there within a few minutes. Coy stepped back and Ellerbrook closed and locked the door. Defendant then drove his vehicle to the store entrance where Coy jumped in. He was seen doing so by a police officer. With police in pursuit defendant drove west on highway 30 through the towns of DeWitt, Wheatland and Lowden at speeds up to 100 miles per hour. The vehicle driven by defendant was stopped in a collision with a highway patrol car.

On at least three occasions within three weeks prior to the events of March 27 defendant was seen in Paul's Discount Store. On one occasion he was there with Coy.

I. Defendant-appellant first contends the trial court erred in allowing the county attorney, on cross-examination of defendant, to inquire into the specific number of times he had been convicted of felonies. This assignment is without merit, first because the only objection made by defendant's trial counsel was the question was repetitious as defendant had already testified he could not remember how many and secondly because we have uniformly held a witness may be impeached by questioning him about the number of previous felony convictions. State v. Houston, 261 Iowa 1369, 1372, 1373, 158 N.W.2d 158, 160, 161; State v. Van Voltenburg, 260 Iowa 200, 207, 208, 147 N.W.2d 869, 873, 874; State v. Jensen, 245 Iowa 1363, 1367, 66 N.W.2d 480, 482, and citations.

The issues and propositions decided in State v. Martin, Iowa, 217 N.W.2d 536, were not raised in the lower court and are not argued here.

II. Defendant-appellant also contends the county attorney's repeated inquiries if the number of defendant's prior convictions was six constituted misconduct. This issue was not raised in the lower court and will not be considered for the first time on appeal. State v. Waterman, Iowa, 217 N.W.2d 621, 624; State v. Russell, Iowa, 216 N.W.2d 355, 356.

We do not imply however the county attorney was guilty of misconduct. The record gives no indication of bad faith on his part. The record clearly shows defendant's evasiveness concerning his prior felony convictions. The prosecutor was justified in attempting to refresh defendant's memory in an effort to get an answer. State v. Van Voltenburg, 260 Iowa 200, 207, 147 N.W.2d 869, 873.

III. Defendant-appellant also contends the trial court erred in admitting testimony concerning the conversation between Ellerbrook and Coy which was out of defendant's presence. He argues his hearsay objection should have been sustained. The State points out the testimony was admitted as an exception to the hearsay rule.

Assuming arguendo that testimony was hearsay, it clearly comes within one of the many exceptions to the rule as there is substantial evidence in the record Coy and defendant were carrying out a conspiracy to do an unlawful act.

Where there is substantial evidence of a conspiracy, everthing said or done by any conspirator in furtherance of the common purpose is deemed to have been said by his co-conspirator and may be proved against him. State v. Olson, 249 Iowa...