State v. Ford, 52205

• Decision Date: 18 October 1966
• Docket Number: No. 52205,52205
• Citation: 259 Iowa 744,145 N.W.2d 638
• Parties: STATE of Iowa, Appellee, v. Larry Eugene FORD, Appellant.
• Court: Iowa Supreme Court

Page 638

145 N.W.2d 638

259 Iowa 744

STATE of Iowa, Appellee, v. Larry Eugene FORD, Appellant.

No. 52205.

Supreme Court of Iowa.

Oct. 18, 1966.

Thomas A. Renda, Des Moines, for appellant.

Lawrence F. Scalise, Atty. Gen., Don R. Bennett, Asst. Atty. Gen., Ray Fenton, County Atty., and Charles F. Robinson, Asst. County Atty., Des Moines, for appellee.

GARFIELD, Chief Justice.

Defendant Ford was charged by county attorney's information, tried and found guilty of breaking and entering Arnie's Tap in Des Moines with intent to commit larceny in violation of section 708.8, Code, 1962. From judgment and sentence on the verdict defendant has appealed. This is the delayed appeal we allowed on November 16, 1965. Ford v. State, 258 Iowa 137, 138 N.W.2d 116, 120.

Three errors are assigned: 1) Admission in evidence of Exhibits D, a hammer, E, a gun, both found by an officer under a pool table in Arnie's Tap, and F, $36.18 in coins of various denominations and a torn dollar bill, allegedly taken from coin machines in the tap and found on defendant's person, together with F--1, the envelope in which the officers placed the money. 2) Admitting testimony of a deputy county sheriff-jailer of defendant's escape from jail and flight while awaiting trial. 3) Giving jury Instructions 8 regarding evidence of flight and 12 as to the weight to be given defendant's own testimony.

We find no reversible error and affirm the conviction.

There is ample evidence of the following: Des Moines police called Arnold Gibson to the tap owned by him about 5:45 a.m. on January 8, 1964. The place had been broken into shortly before then. Gouge marks were found on the door. The coin machines on the juke box, pool table and shuffle board were broken open and, it was stipulated, $37.18 was taken from the tap. Gibson testified the hammer and gun, Exhibits D and E, found by the police under the pool table, were not his.

Police officers Weatherington and Belieu, while passing the tap, noticed some wood had been knocked away from the door. Belieu quickly searched the place while Weatherington called Lieutenant Teale. When Teale arrived he and Belieu found defendant hiding under the pool table with the hammer and gun near him. Defendant told the officers he broke into the building and coin machines. $36.18 in coins of various denominations and a torn dollar bill, all identified as Exhibit F, were found in defendant's left front pocket, counted by the three officers, placed in the envelope, Exhibit F--1, and put in the property locker at the city jail.

The property clerk was the only other person with access to the locker. The three officers all testified Exhibit F--1 was in basically the same condition as when it was placed in the locker. Similar testimony was given by one or more officers as to Exhibits D and E, the hammer and gun. There is also testimony of Officers Belieu and Devine that defendant admitted the hammer was his but denied owning the gun. However, Officer Nehring testified defendant admitted owning both the hammer and gun.

Defendant's testimony is that as he was walking past the tap about 5 a.m. he saw a police car and the tavern door was open; Officer Belieu commanded him at gun point to come inside and stand there so the officers could charge him with robbery; he was standing by the pool table, not crouched under it, when Lieutenant Teale arrived; he denied knowledge of the hammer and gun; denied the $37.18 was found on his person; denied he admitted to the police he broke into the tap or that the hammer was his.

Defendant testified he had twice previously been convicted of a felony, once for receiving and concealing stolen property, and was on parole on January 8, 1964.

Testimony as to defendant's escape from jail will be referred to later.

I. Abuse of discretion and error are claimed in admitting in evidence the hammer, gun and money, Exhibits D, E, F, and F--1 (the envelope containing the money). It is said the proper foundation was not laid for receipt of the exhibits. As to F and F--1, the principal objection seems to be that the property clerk at the city jail was not produced as a witness. We think failure to call the property clerk was not necessary to the admissibility of the money and the envelope under the circumstances here.

There is ample evidence $36.18 in coins of various amounts and a worn and torn dollar bill were found in defendant's pocket at the scene of the break-in, the money was counted by one officer in the presence of two others, placed in the envelope and then put in the property locker. The envelope and its contents, including the worn and torn bill and the various coins, were produced at the trial in the same basic condition as when they were deposited in the locker. Why the property clerk--or anyone--would want to remove from the envelope the coins originally placed there and substitute others of the same total amount and generally of similar denominations is difficult to understand and no motive for doing so is suggested. Failure to call the property clerk as a witness went to the weight of the evidence rather than its admissibility. Closely in point is State v. Shilinsky, 248 Iowa 596, 599, 600, 81 N.W.2d 444, 447. See also People v. Pittman, 28 Ill.2d 100, 190 N.E.2d 802.

Lieutenant Teale testified he found the hammer and gun under the pool table near the place defendant was hiding. Officer Belieu said he saw Teale coming out from under the table with the hammer and gun in his hands, Teale handed the exhibits to Belieu who marked them for identification, defendant admitted owning the hammer but denied owning the gun, Belieu identified the exhibits as the ones Teale handed him. Teale also testified both Exhibits D and F were the ones he found under the pool table near the place he saw defendant and, except for its identification tag, each was in the same condition as when he first observed it.

Defendant seems to think the identification of these exhibits by Officer Belieu insufficient because he first saw them in Lieutenant Teale's hands rather than under the pool table and that Teale's identification was insufficient because he did not testify the identification tags were the ones Belieu placed on the exhibits. We are also told the State did not show defendant's fingerprints were on the exhibits, nor the serial number of the gun, nor that the hammer and gun were actually used in committing the crime.

These and other matters suggested by defendant went to the weight to be accorded the exhibits, not to their admissibility. Their identification as articles in defendant's possession at the time and place of the break-in, suitable and available for use in committing the crime, was sufficient to support their receipt in evidence. Indeed it seems to be a reasonable inference that the hammer was actually used in knocking the wood from the door to the building and gaining entrance to it.

It is not necessary under such circumstances as we have here that the serial number of a revolver be shown in order to render it admissible in evidence, even though it probably cannot be positively identified unless the number is taken. See in this connection State v. Taylor, 196 Iowa 1015, 1020, 1021, 192 N.W. 294, 295, 296; State v. Bales, 246 Iowa 446, 451, 68 N.W.2d 95, 98; State v. Poffenberger, 249 Iowa 480, 483, 484, 87 N.W.2d 441, 443; State v. Harless, 249 Iowa 530, 534, 535, 86 N.W.2d 210, 212, 213; State v. Ladehoff, 255 Iowa 659, 664, 122 N.W.2d 829, 832.

We have held many times 'The trial court has considerable discretion in determining the admissibility of demonstrative evidence but great latitude is shown in admitting it and it is usually received if it affords a basis for a reasonable inference on a point in issue.' State v. Williams, 245 Iowa 494, 505, 62 N.W.2d 742, 748; State v. Poffenberger, supra; State v. Shilinsky, supra, 248 Iowa 596, 600, 81 N.W.2d 444, 447. See also State v. Triplett, 248 Iowa 339, 350, 79 N.W.2d 391, 397, 398; State v. Fisk, 248 Iowa 970, 975, 83 N.W.2d 581, 583. We find no abuse of discretion here.

II. The assigned error in admitting testimony of deputy sheriff-jailer Spangler as to defendant's escape from jail and flight while awaiting trial is without merit.

Spangler testified defendant was received in the county jail on January 9; on February 29 a jailbreak occurred in which defendant, and prisoners Agee and Byers, all confined in the fifth cell block, escaped; defendant was returned to the jail March 6. One objection to this testimony, although made belatedly, is that no proper foundation was laid for it and there was no showing defendant intended to flee to avoid prosecution for the crime charged in the information filed February 11.

Any lack of certainty in laying a foundation for Spangler's testimony, in the sense of showing his knowledge of defendant's escape and purpose in doing so, were promptly supplied by defendant's own testimony on examination by his counsel that he 'left the jail because of this charge.' Defendant also testified he dyed his hair two days after 'we broke out of jail, so I wouldn't be recognized.'

The objection that the evidence of escape and flight was irrelevant and immaterial and prejudicial to defendant's rights was rightly overruled. It is well established that evidence of escape from custody and flight of an accused is admissible as a criminating circumstance. We have so held many times. It is sufficient to cite State v. O'Meara, 190 Iowa 613, 625, 177 N.W. 563; State v. Heath, 202 Iowa 153, 156, 209 N.W. 279. See also 22A C.J.S. Criminal Law § 625a and citations note 69, page 462; 20 Am.Jur., Evidence, section 293.

The fact legitimate evidence, such as that of escape here, may be prejudicial to an accused in the sense of injuring his defense is not a proper ground for excluding it. State v. Stansberry, 182 Iowa 908, 912, 166 N.W. 359, 360, 361; State v. Triplett, supra, 248 Iowa 339, 350, 79 N.W.2d 391, 397.

Defendant...