State v. Friend

• Decision Date: 14 April 1930
• Docket Number: No. 39200.,39200.
• Parties: STATE v. FRIEND.
• Court: Iowa Supreme Court

210 Iowa 980

230 N.W. 425

STATE

v.FRIEND.

No. 39200.

Supreme Court of Iowa.

April 14, 1930.

Appeal from District Court, Tama County; Clarence Nichols, Judge.

The defendant was charged, by an indictment, with the crime of buying and receiving stolen goods, knowing the same to have been stolen. To the indictment, the defendant entered a plea of not guilty. Upon trial, a verdict of guilty was returned and judgment entered committing him to the penitentiary. From this judgment, the defendant appeals.

Affirmed.F. E. Northup, of Marshalltown, and M. W. Hyland, of Tama, for appellant.

John Fletcher, Atty. Gen., and Neill Garrett, Asst. Atty. Gen., for appellee.

WAGNER, J.

The indictment charges: “That the defendant, Hardy Friend, on or about the 15th day of November, 1926, in Marshall County, Iowa, did unlawfully and feloniously buy and receive stolen goods and property, to–wit: Ten ladies fur coats and four fur chokers, the property of the H. Willard & Sons Company, and of the value in excess of twenty Dollars, the defendant then and there knowing the said goods to have been stolen from said owners.” To this indictment, the defendant entered a plea of not guilty, and filed a motion asking for a change of venue, which was sustained and the case transferred to Tama county for trial, where there have been two trials; the first resulting in a disagreement of the jury, and the second in a verdict of guilty. From the judgment entered upon the verdict, the defendant has appealed.

Some time before daybreak, on the 14th day of November, 1926, the front door of the store of H. Willard & Sons Company, in the city of Marshalltown, was broken by two burglars, to wit, Mooney and McDonald, and fur coats and chokers taken therefrom, which were of the value of more than $15,000. The furs were taken, by the burglars, to the Smith farm near Marshalltown, where one of said burglars had previously worked, and temporarily stored in a small dilapidated Vshaped hog house. The burglars then returned to Marshalltown. They admit their guilt. According to their testimony, they met the defendant, Hardy Friend, the next day and informed him that they had committed the burglary, and some talk was had among them as to the disposal of the furs; that the defendant informed them he might buy some of them; that there were several talks among the three within the next day or two; that within a short time, probably during the night of the 15th of November (the record not clearly showing the exact date), the three went to the place of concealment of the furs, and there the defendant selected the furs referred to in the indictment, which were, by the three, brought to Marshalltown and left at the home of the defendant's mother, where he was residing; that the defendant paid several hundred dollars for the goods procured by him, and delivered intoxicating liquor, consisting of alcohol and whisky, and agreed to convey the remainder of the furs to Chicago and assist in disposing of them.

It is also shown by the record that the defendant had been using, for storage purposes, a feed way in a barn upon a farm near Marshalltown, owned by Heberle; that Mrs. Heberle, some time in the spring of 1927, discovered four packages in the feed way, which were soft to the touch; that upon her first discovery, she did not open the same; that some time later, she took the packages to the house, opened them, and discovered the furs with tags thereon indicative of the fact that they were a portion of the Willard furs stolen from the store the previous November. She, at that time, put them in a box in a milk shed or summer kitchen. She testified that she did not inform her husband that she had removed the packages from the barn. Some time in June, the defendant appeared at the Heberle barn and ascertained that the packages containing the furs had disappeared, and had a talk with Heberle about the disappearance of the packages, and Heberle informed him that he knew nothing about them; that he informed Heberle, in substance, that the packages contained furs, for which he had paid several hundred dollars, and that they were worth several thousand dollars. Heberle testified: “He (Friend) asked me where they were? I said ‘if they are gone, I don't know.’ I did not know at that time they were gone and he said that some neighbor must have slipped in and took it, the law didn't take them, if the law had took them he would have heard about it by this time and he said he was out several thousand dollars.” Heberle further testified: “He told me that if anybody ever testified against him it would be good night, he was liable to shoot him right on the witness stand.” It appears that in August, Mrs. Heberle informed one of the partnersof the Willard store as to the whereabouts of a portion of the furs, and he went with her to her home, where the furs were delivered to him. She explained that she did not report sooner, because of fear of implication of guilt to her and her husband. These furs were produced at the time of the trial and were clearly identified as a portion of the furs which were taken by the confessed burglars. The value of the furs referred to in the indictment is shown to be approximately $3,000. There is other testimony in the record, but for the sake of brevity, we will not set it out. No motion for a directed verdict was made, and there is, and can be, no question under the record as to the sufficiency of the evidence to support the verdict of the jury.

To obtain a reversal, the defendant attacks the instructions of the court, and relies upon alleged errors committed by the court in rulings upon the introduction of evidence and claimed prejudicial misconduct on the part of the trial court, and also the claim that the court erred in overruling his motion for a new trial, based upon newly discovered evidence.

[1] The defendant excepted to the court's instruction on reasonable doubt. In this instruction, the court told the jury that a reasonable doubt of guilt is a doubt reasonably arising in the mind of a juror from a consideration of all the evidence in the case, or from the lack of evidence on the part of the state; that in considering the case, the jury should not entertain as reasonable such doubts as might arise from fancy, caprice, imagination, or groundless conjecture; that a doubt to be reasonable must be one that arises from a candid and impartial consideration of the whole case, including the evidence offered, as well as the lack of evidence; that it should be such a doubt as would cause a reasonably prudent person to hesitate and pause before acting in the graver and more important affairs of life. The court then said: “If, after a careful and impartial consideration of all the evidence presented in the case, you can feel and say that you have an abiding conviction of the guilt of the defendant as charged in the indictment, and are fully satisfied of the truth of the charge, then you are satisfied beyond a reasonable doubt.” At this point, it is the appellant's contention that the words “are fully satisfied” should be modified by the use of the words “beyond a reasonable doubt.” He would have the court tell the jury that, if they are fully satisfied beyond a reasonable doubt of the truth of the charge, then they are satisfied beyond a reasonable doubt. The appellant's objection is without merit.

[2] In another instruction, the court told the jury: “A statute of this State provides that if any person buy or receive any stolen goods or property the stealing of which is larceny, knowing the same to have been so stolen, when the value of the property so bought or received exceeds the sum of twenty dollars, he is guilty of a felony and punished as provided by law. The extent of the punishment, in case of conviction, is one for the Court and is not one to be considered by the Jury.” The defendant objects to the words in the instruction, “he is guilty of a felony and punished as provided by law”; his contention being that said words should be stricken out of the instruction, and the words “he may be found guilty,” or some similar expression, substituted in lieu thereof. The instruction is a correct statement of the statutory law, and further comment is unnecessary.

[3][4] In another instruction, the court sets out the material averments of the indictment, and the appellant contends that the same does not limit the theft or stealing to the specific crime as testified to by the perpetrators of the larceny, but would leave it open to any other larceny, even though the same may not have been within the period of the statute of limitations. In so far as the statute of limitations is concerned, the time which is material is the time when the appellant bought or received the goods, and the court clearly told the jury that one of the material averments is: “That defendant so bought or received said fur coats and chokers at Marshall County, State of Iowa, and on or about the 15th day of November, 1926.” It must be borne in mind that the defendant is not on trial for the larceny, but only for buying or receiving goods obtained as the result of the larceny. The reading of the instruction given is sufficient answer to appellant's contention.

[5][6] In another instruction, the court refers to certain elements of the crime, and that it is necessary for the jury to find certain things beyond a reasonable doubt, closing the instruction by saying: “But if the State has failed so to establish, then the jury need proceed no further herein but should return its verdict finding the defendant not guilty.” The appellant complains because the court omitted the words “beyond a reasonable doubt” in the closing words of the instruction, but it is apparent that the use of the word “so” is equivalent to what the appellant contends is missing. Moreover, the instructions are to be read and considered as a connected whole, and the jury were plainly instructed that they must find...