State v. Fonza
| Citation | 254 Iowa 630,118 N.W.2d 548 |
| Decision Date | 11 December 1962 |
| Docket Number | No. 50722,50722 |
| Parties | The STATE of Iowa, Appellee, v. Henry Carl FONZA, Appellant. |
| Court | Iowa Supreme Court |
Jens Grothe, Des Moines, for appellant.
Evan Hultman, Atty. Gen., John H. Allen, Asst. Atty. Gen., and Harry Perkins, Polk County Atty., Des Moines, for appellee.
Defendant, Henry Carl Fonza, was indicted, tried and found guilty of robbery. From judgment of imprisonment he has appealed. The first problem is factual. Was there evidence to support a verdict of guilty?
Factually the prosecution's case suffers from anemia. There is plenty of suspicion, conjecture and rationalizing but little substance. We suspect that this condition may have been brought about by the failure of a contemplated witness for the State to testify. The clerk's transcript which is before us, in addition to the printed record, shows that the State made application for the return of a witness from the State Training School so as to be available as a material witness on behalf of the State. An order as requested was made. The record does not show that the witness ever testified.
Much of the evidence appears without material dispute.
About 1:00 or 1:30 A.M. on January 14, 1962 Billy J. Williams, the prosecuting witness, took his girl friend home from a dance. As he departed he removed his bank book from his hip pocket and left it with her for safekeeping. He 'didn't want to take a chance of losing it.' He says that at that time his billfold containing about seven dollars was in his pocket. He thinks, but is not sure, that from force of habit he buttoned his pocket.
After leaving his girl friend, Williams drove around until about 2:30 A.M. looking for his girl's brother-in-law's car. Just why he spent an hour or an hour and a half driving around at that time of night for such a purpose does not appear. It is probably not important. He saw what he thought was the car he was looking for. He parked his car, got out and went around the corner. There he met 'four guys' coming up the street. One of them hit him and Williams fell. He says that then all four started kicking and hitting him. After a couple of minutes he heard one of them say 'Let's get out of here.' The assailants left. Williams got up, went into the Roxie Hotel and asked for something with which to wipe blood off his face. Someone said 'what did they do, rob you?' He reached in his pocket. His billfold was gone. With someone from the hotel he went outside, saw a police patrol car and reported the incident. The area was searched but the billfold was not found. The police broadcast a call for the apprehension of the suspects. Within a few minutes four colored young men, in separate groups of two each, were taken into custody. One of the youths, other than defendant, was identified by Williams as the initial assailant. Defendant was identified as one of the group of assailants.
Williams was taken to Mercy Hospital for repairs. This was some distance from the place of the assault. He spent the night there. The next morning at the hospital Williams' billfold without the money was returned to him by an unidentified white woman who said some woman coming to church at the hospital had found it and turned it in.
I. The weakness in the State's case appears in Williams' testimony. He is not sure of anything except that he was attacked, that he later missed his billfold and that defendant was present during the attack. The evidence would support a charge of assault and battery but taken as a whole is insufficient to establish larceny, an essential element in robbery. The evidence about the return of the billfold, if it proves anything, indicates that it was found too far from the place of assault to have been discarded by defendant or his companions. Concerning his billfold and the assault, Williams testified, (emphasis supplied) * * *'
Speaking of the return of the billfold he said,
When defendant was searched for weapons by police a few minutes after the assault and again thoroughly searched at the police station, no money and nothing to connect him with a larceny or robbery was found on his person. The only one of the suspects who had any money was Holmes, the first assailant. In his billfold (not Williams') were two five dollar bills and three one dollar bills.
At a later interrogation by police at the county jail defendant was informed that he had been charged with robbery. He was shown a statement and asked if he knew from the statement that he was accused of being an accomplice to the robbery. He said, 'Well, I was with the guys, but I won't go for robbery.'
Defendant, 22 years old, was a resident of Illinois. He had driven to Des Moines about a week before to visit an aunt and uncle. On the evening in question, with a cousin, he went to a dance at a place called the Brotherhood. After the dance he was invited by someone to a house party. After the party he was asked to take a number of boys home. He did so. Defendant says he was intoxicated and sick from drinking wine and asked some of the others to drive. Finally there were only the four, who were later arrested, in the car. Defendant testified that the driver stopped the car. They all got out. He said he saw a man coming.
It is undisputed that defendant was present or at least saw the assault. The testimony of Williams would be sufficient to generate a jury question that defendant may have joined in the assault. There is no evidence whatsoever that defendant knew of any plan for assault. There is no evidence that defendant knew of any planned robbery or larceny, participated in any larceny, if there was a larceny, or until he was in jail knew that a larceny had been committed or claimed.
II. If any person, with force or violence, or by putting in fear, steal and take from the person of another any property this is the subject of larceny, he is guilty of robbery. Section 711.1, Code of Iowa, I.C.A.
Larceny means to steal, take and carry away property of another. Section 709.1, Code of Iowa, I.C.A. The crime of robbery includes larceny. State v. Taylor, 140 Iowa 470, 474, 118 N.W. 747; State v....
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