State v. Estrella

• Decision Date: 09 February 1965
• Docket Number: No. 51461,51461
• Citation: 133 N.W.2d 97,257 Iowa 462
• Parties: STATE of Iowa, Appellee, v. Richard C. ESTRELLA, Appellant.
• Court: Iowa Supreme Court

Page 97

133 N.W.2d 97

257 Iowa 462

STATE of Iowa, Appellee, v. Richard C. ESTRELLA, Appellant.

No. 51461.

Supreme Court of Iowa.

Feb. 9, 1965.

Linnan, Lynch & Straub, Algona, for appellant.

Evan A. Hultman, Atty. Gen., and Gordon L. Winkel, Kossuth County Atty., for appellee.

LARSON, Justice.

By a county attorney's information defendant was charged with the crime of shoplifting of goods of a value in excess of $20.00, in violation of section 709.20, Code of Iowa 1962, I.C.A. Pursuant to trial and conviction he was sentenced to five years imprisonment in the state penitentiary. Six assigned errors are relied upon for reversal.

I. Appellant first contends the court erred in overruling his motion for a directed verdict based upon the insufficiency of the evidence. The rule is well established in this jurisdiction that criminal cases should be submitted to the jury if there is substantial evidence tending to support or reasonably tending to support the charge. State v. Miskell, 247 Iowa 678, 686, 73 N.W.2d 36; State v. Anderson, 239 Iowa 1118, 1125, 33 N.W.2d 1, and cases cited therein. This evidence may be direct or circumstantial, or a combination of each. State v. Manly, 211 Iowa 1043, 233 N.W. 110; State v. Heinz, 223 Iowa 1241, 275 N.W. 10, 114 A.L.R. 959.

In considering a motion for a directed verdict the evidence, of course, is to be viewed in the light most favorable to the party against whom the motion is directed. No authority need be cited in support of that proposition, but see 23A C.J.S. Criminal Law § 1145(3) h; State v. Anderson, supra.

The record discloses that as Mr. Williams, the owner of the Hub Clothiers store in Algona, Iowa, was watching television in the rear of his store shortly after 5 P.M. on December 14, 1963, he heard something fall to the floor near the front of the store. He turned in time to see someone going out the door. He called out offering to wait upon this person, but the party merely looked back, left the store hastily, and in doing so dropped something blue. Mr. Williams ran to the front of the store, picked up a long-sleeved knit sport shirt from the floor where it had been dropped, and stepped outside in time to see the party, later identified as the defendant, walking westward on State Street 'outside the cars.' Williams could not see him carrying anything, but when he returned to the store he noticed three or four piles of shirts were gone from the place they were normally kept. He called the police, locked the store, and went in search of the party he had seen leave the store. He was joined by a highway patrol officer. They observed Dick Beisell sitting in his car near the corner of that block and asked him if he has seen anybody of defendant's description. Williams said he told them he had seen such a man going south with unwrapped shirts in his arms, that this man had turned into the alley behind Sheakley's store and had returned a few minutes later empty-armed.

Williams and the officer went down the alley and found ten shirts bearing the Hub store markings under an air conditioner at the rear of Sheakley's store. Williams testified the retail price of these shirts totaled $71.60. He said they were returned to the Hub store and placed on a counter separate from other merchandise. The following Monday, December 16th, the sheriff, at Williams' request, took a picture of these shirts, and the photograph was later introduced in evidence as State's Exhibit A.

Mr. Beisell testified he saw defendant come down the street with his arms loaded with clothing or wearing apparel of bright colors. He said defendant came from the east and went south to the alley behind the Sheakley store, then east down the alley, and that defendant soon reappeared without the apparel.

Defendant's sole evidence was given by Officer Groen, who said he arrested defendant in Rusk's Drug Store in Algona at about 5:45 or 5:50 P.M. on that day. The officer was called there because defendant was causing a disturbance. Officer Groen testified he observed defendant standing in the store, that defendant did not stagger around, that he talked with defendant, that defendant gave him his name, and that defendant willingly left the store with him. The officer also said defendant was later sentenced to 15 days in jail on an intoxication charge in the mayor's court.

The direct evidence produced by the State is sufficient to sustain a jury-finding of guilt. Williams and Beisell positively identified the defendant and connected him with the taking and concealing of store apparel. Williams saw him as he lfet the store and as he walked westward down the street. He saw defendant's face, his build, and his wearing apparel. True, he could not say he saw the defendant carrying this merchandise, for at all times defendant was moving away from Williams and could have been carrying the shirts in such a way that they could not be seen from the rear. On the other hand, Beisell saw defendant at approximately the same time approaching from the east, saw him carrying unwrapped shirts, and observed his course of travel to the alley where the shirts were found a short time later. Thus, we find no contradiction in Williams' testimony. While he said he saw no shirts in defendant's arms as he fled from the store, he did not say defendant was leaving empty-handed.

The dropped shirt, plus the noted absence of three or four piles of shirts from the counter, gave rise to a fair and reasonable conclusion that they were taken from the store by defendant. The immediate discovery of the place that defendant hid the shirts would also give rise to a fair and reasonable conclusion that they were so concealed by him. Indeed, appellant suggests no other reasonable hypothesis from the facts disclosed by these witnesses. Thus there is no merit in the contention that this evidence was merely circumstantial and, as such, insufficient to sustain a conviction. The cases of State v. Whisler, 231 Iowa 1216, 3 N.W.2d 525, and State v. Cristani, 192 Iowa 615, 185 N.W. 111, cited by appellant, are not in point, for in each the evidence relied upon for conviction was entirely circumstantial and clearly insufficient to sustain a conviction. Convictions may, of course, be had on purely circumstantial evidence.

We conclude under this record there was substantial evidence, both direct and circumstantial, which reasonably tended to support the verdict.

II. In his second assignment appellant contends that a photograph, State's Exhibit A, was erroneously admitted. We are definitely committed to the rule of admissibility where proper foundation has been laid. State v. Ebelsheiser, 242 Iowa 49, 56, 43 N.W.2d 706, 19 A.L.R.2d 865. The photograph here was shown to be a true representation of the stack of shirts, something which it purported to represent. Since a verbal description of these shirts would have been admissible, the photograph was admissible. Such a photograph would be competent evidence of that which would be competent and relevant if verbally described by a witness. State v. Ladehoff, Iowa, 122 N.W.2d 829, 834; State v. Ebelsheiser, supra; State v. Leib, 198 Iowa 1315, 201 N.W. 29; 23 C.J.S. Criminal Law § 852(1). Mr. Williams here identified the exhibit as a photograph of the shirts that were taken from his store on the evening of December 14th. He had placed them on that counter when returning them to the store. Sheriff Lindhorst identified the exhibit, said he took the picture and that it accurately represented the designated merchandise. A proper foundation was laid and the photograph was sufficiently identified for its admission in evidence.

Appellant's most 'serious objection' to this exhibit, however, arises out of a marking on the back of the photo. A stamp was imprinted thereon so the photographer would have a record of the date of the picture, the shutter opening, etc., including a space for the subject. Because the words 'Shirts taken from Hub' appear after the term 'Subject', appellant contends the exhibit was inadmissible. He contends this notation was placed thereon by the sheriff-photographer who did not see these shirts taken from the Hub, and when taken into the juryroom it was prejudicial to defendant and was hearsay. No objection was raised in the trial below on this ground, and none can be raised here. State v. Mauch, 236 Iowa 217, 225, 17 N.W.2d 536; State v. Woodmansee, 212 Iowa 596, 614, 233 N.W. 725. While it is true these words might have been blocked out had the objection been raised below, the trial court was given no opportunity to so rule. Nevertheless, we think they were harmless words and conclude any right to have them stricken was waived. As bearing on this matter, see 20 Am.Jur., Evidence, § 741, p. 617.

III. In his third assignment appellant complains of certain hearsay testimony of the witness Williams regarding statements allegedly made by the witness Beisell while not in defendant's presence. While there may be some question as to whether defendant performed his obligation to make clear the basis of his objection to preserve the error (State v. Ostby, 203 Iowa 333, 342, 210 N.W. 934, 212 N.W. 550, and citations), the State correctly points out the error, if it was such, was not reversible error, for the witness Beisell later gave substantially the same testimony in the trial. Appellant concedes that is the rule, but argues if Beisell had testified first, the hearsay evidence would be less prejudicial and might be overlooked. We are not convinced the order of the testimony makes any great difference when the substance of the hearsay testimony is substantially the same as that properly presented in the trial by a competent witness. There is no merit in this assignment.

IV. Appellant further contends the court erred in giving Instruction No. 8, which he says invades the province of the jury and instructs the jury that if it finds one fact to exist, that fact as a matter of law implies the...