State v. Fortune
| Decision Date | 22 June 1923 |
| Docket Number | No. 35302.,35302. |
| Citation | 194 N.W. 65,196 Iowa 884 |
| Parties | STATE v. FORTUNE. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Wright County; E. M. McCall, Judge.
Defendant was convicted of larceny of merchandise from a store building in the nighttime. Facts appear in the opinion. Defendant appeals. Affirmed.Martin & Alexander, of Webster City, for appellant.
J. A. Rogers, Co. Atty., of Clarion, Ben J. Gibson, Atty. Gen., and Maxwell O'Brien, Asst. Atty. Gen., for the State.
Prior to and on October 21, 1920, the firm of Charlson & Holt, a partnership composed of J. E. Charlson and Ed Holt, was engaged in operating a clothing store in the town of Goldfield, Iowa. The store building was located on the main street in Goldfield, that runs north and south. There is only one main business block in Goldfield, and the Charlson & Holt store building is in said block. There were doors at the back end of the building on the alley and in the front of the store. These merchants carried as part of their stock of merchandise, overcoats, shoes, hats, men's and boys' furnishings and wearing apparel, including Hart, Schaffner & Marx and Styleplus suits and overcoats, Stetson and Keith Bros. hats, Wilson Bros. neckties, Tilt and Walkover shoes, mittens from different concerns, and work clothes, Railroad King and Robert Kraus overalls. During the night of October 21, 1920, the store was broken into by forcing the back door, and a large amount of merchandise taken and carried away. Articles taken were 25 Hart, Schaffner & Marx suits, worth from $40 to $57 each, about 2 dozen Stetson hats, worth $7 each, 3 Keith Bros. hats, worth $5 each, 5 dozen silk shirts, worth $5 to $10 each, about 2 dozen neckties, worth from $6 to $24 a dozen, 15 Hart, Schaffner & Marx overcoats, worth $45 to $50 each, about 5 dozen socks, worth $12 to $15 a dozen, and 3 dozen mittens, worth $72.
The state introduced testimony tending to show that defendant was acquainted with and had associated with Naomi Purvis, Herbert Bige, Oscar Jones, and Mrs. Melissa White, a sister of Naomi Purvis; that in October, 1920, Naomi Purvis was staying at the home of Louis Vance, a farmer who lived four miles west of Webster City; that on the night of the robbery Naomi Purvis went with the Vances to Webster City, where she met her sister, Melissa White, and Herbert Bige at the home of another sister, Mrs. James Campbell, who lived in Webster City; that defendant called at the Campbell home, driving his Nash touring car, and got Naomi Purvis, Melissa White, and Herbert Bige; that Oscar Jones was with the defendant when he called at the Campbell home; that defendant had been acquainted with Naomi Purvis for some time, and had taken her riding previously; that defendant drove the car, and Oscar Jones occupied the front seat with him, the others sitting in the rear seat; that after driving about town for a short time defendant drove through Eagle Grove toward Goldfield, and one of the men said they were going to Goldfield to rob a store or go in a store; that upon reaching Goldfield they drove in on a side street and stopped; that defendant and Bige and Jones got out of the car and went somewhere; this was late at night; that the two women, Naomi Purvis and Melissa White, slept for some time in the car, and were awakened when the three men, defendant, Bige, and Jones returned; that all three of the men brought goods back with them, and put the goods in defendant's car; that Mrs. White asked the men if they really went in, and one of the men said that they did; that the goods were thrown into the car, and the party then returned to Webster City, where Bige, Mrs. Melissa White, and Naomi Purvis got out of defendant's car, and held some conversation with the men, before defendant left them, in which conversation it was said that if they were found out the girls would be in as much trouble as they were. It was also said there at that time that the goods would be taken to a Jew at Ft. Dodge, where they would be sold; that Bige then took Naomi Purvis to the Louis Vance home, where he arrived about 5 o'clock in the morning.
On the 1st day of December, 1920, officers searched the home of defendant, Roy Fortune, and found merchandise which one of the proprietors of the store identified as property which had been taken from their store. The property so found was left at the Hansen & Tyler garage in Webster City. The articles found in the home of defendant were 2 hats, a box of socks, 4 suits, 1 overcoat, Hart, Schaffner & Marx brand, and a boy's overcoat. The home of defendant was again searched by the sheriff, and Charlson and a Mr. Carl and a Mr. Wheeler went along with the sheriff. In this search there were found 4 Hart, Schaffner & Marx suits and some buckskin mittens which were identified by Charlson as merchandise taken from the store. The same evening the sheriff and Mr. Charlson went to Ft. Dodge and searched a pawnshop or secondhand store of a Jew named Selicovich, and found 9 Hart, Shaffner & Marx suits, 3 overcoats, 9 silk shirts, 2 boxes of silk handkerchiefs, and some silk socks, all of which Charlson identified as his property which had been taken from his store. A day or two later Charlson had a conversation with defendant at the justice court in which defendant told him that he had been to see his girl; that the gang had asked him some place in Goldfield that they could rob, and he and his girl had been to a dance; that they were going home, and stopped in Goldfield and went into a restaurant, and he looked in Charlson & Holt's show window and knew that it was a clothing store and that was what decided him that that would be a good place.
George Wheeler, witness for the state, testified to a conversation with defendant during the first search made at the defendant's home, in which Wheeler asked defendant why he had so much goods on hand, and defendant said that he was figuring on getting married and taking a trip, and that he needed a lot of clothing and stuff of that sort. Wheeler testified that a little later, about 30 minutes, defendant told him that three parties from Waterloo had driven to his home with the merchandise a week or so before, and left a lot, and drove back about a week after that with another load to leave with him, and he then told them he did not want them to leave the merchandise, and they told him they would squeal on him if he did not take it, and so he had to, and that whatever merchandise was there was left for his commission for keeping the first load.
Defendant took the witness stand in his own behalf and testified, concerning his signing of a confession, that he had signed because of threats made by the sheriff. No denial or explanation was made by defendant as to certain admissions testified to by the state's witnesses, nor did he attempt to explain his possession of the stolen property. Defendant offered testimony of three witnesses as to his good character. W. H. Cunningham testified that he had known defendant and his family; that he had met defendant and other members of the family probably every week for some time, the record does not disclose how long, and that the character of the defendant was good; that “his character was good as far as I knew him.”
C. B. Carl testified that he had known defendant about 10 years while he was living at home with his parents; that “as far as I know, his character was good during that time.”
Defendant also offered in evidence other indictments which had been returned by the grand jury charging defendant and Herbert Bige jointly with breaking and entering the store of Charlson & Holt and for larceny which had been quashed, and motion by the state for dismissal of said indictments, and the order of court sustaining said motion. At the close of all the evidence defendant moved the court to direct a verdict in his favor, which motion was overruled, and the case submitted to the jury, with the result that the jury returned a verdict finding defendant guilty. Defendant moved in arrest of judgment and for a new trial, which motions were overruled, and judgment was entered on the verdict sentencing defendant to an indeterminate term in the State Reformatory at Anamosa not exceeding 10 years.
Defendant assigns numerous errors on which he relies for reversal, which we will consider.
[1] I. Following the alleged larceny indictments were found by the grand jury charging defendant and one Bige jointly with breaking and entering the store of Charlson & Holt, and other indictments charging them with breaking and entering a store at Woolstock in the same county. These indictments were pending until the 13th day of February, 1922, when defendants by written objections challenged the validity of said indictments on the ground that the grand jury list and panel were not prepared and selected as required by statute, etc. On hearing evidence in support of the objections, the county attorney moved to dismiss the indictments on the ground that it affirmatively appeared that the grand jury which returned the indictments was not legally drawn, and said motion was sustained and the indictments dismissed, and the court ordered that the charge against defendant be resubmitted to the grand jury at the April term, 1922. On such resubmission the indictment in the instant case was returned.
Defendant assigns as error the order of court setting aside said former indictments. Defendant's particular complaint of this order, as we understand him, is that the dismissal of the former indictments deprived him of a speedy trial and increased his jeopardy. We can see no merit in such position. Defendant himself raised the question that the former grand jury was illegally drawn, and offered testimony in support of his objections, and the county attorney, being convinced that the grand jury had been illegally drawn, moved for dismissal of the indictments, which motion was sustained.
[2] II. An instrument in writing...
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