State v. Gallagher

• Decision Date: 12 December 1944
• Docket Number: 46524.
• Citation: 16 N.W.2d 604,236 Iowa 123
• Parties: STATE v. GALLAGHER.
• Court: Iowa Supreme Court

16 N.W.2d 604

236 Iowa 123

STATE v. GALLAGHER.

No. 46524.

Supreme Court of Iowa

December 12, 1944

L M. Hullinger, of Cedar Rapids, for appellant.

John M. Rankin, Atty. Gen., William F. McFarlin, Asst. Atty. Gen and Carl Hendrickson, Co. Atty., and D. M. Elderkin, Asst Co. Atty., both of Cedar Rapids, for appellee.

SMITH Justice.

The state charged that appellant, on April 8, 1943, stole a billfold containing approximately $46 in money, the property of one Mrs. Irma Whitcomb, her close friend. On the evening of that day appellant and Mrs. Whitcomb, in company with two men were in a tap room booth drinking and dancing from 9 or 9:30 until around midnight.

Mrs. Whitcomb had her billfold or purse in a black bag or pocketbook. Along about 11 o'clock she went to buy cigarettes and left the bag and billfold there in the booth. When she returned and went to put the change back in her purse the pocketbook was there and the billfold gone. She did not remember whether she had put the billfold back in the pocketbook or left it on top of the table.

All four of the party, including appellant, searched for the billfold and appellant claimed her billfold had also been taken. Finally, Mrs. Whitcomb announced she was going to the police station and they all went, apparently by mutual consent. When they arrived there it seems both women reported their respective losses, though Mrs. Whitcomb testified she did not remember of any complaint by appellant either at the tap room or at the police station.

Of the four in the party only Mrs. Whitcomb and one of the men testified. The other man was in service at time of trial and appellant did not testify.

At the police station it was suggested by the officers that all four be searched. All consented. Mrs. Whitcomb searched appellant and found the two billfolds in the front of her dress. One was identified by Mrs. Whitcomb as hers and it contained approximately $46. Appellant identified the other as her own.

That same night one of the officers prepared a written statement embodying the information he obtained from appellant and she signed it. The details it gave were substantially as had been testified to by the prosecuting witness and the other member of the party who testified and as we have briefly outlined. However, it contained this language:

'While we were out shopping earlier, Irma cashed a check * * *, the amount of this check was $50, and knowing most of this money was in the purse I decided to take this money; I opened up Irma's purse and took a billfold which I knew contained this money and placed it inside the front of my dress.

'* * * before we left the Tap Room I told Irma someone had also taken my billfold. I did this so no one would suspect me of taking Irma's money.'

I. Appellant urges that the evidence was not sufficient to support the verdict of guilty. The argument is based upon some features we have not yet set out. Mrs. Whitcomb, as the State's witness, seemed more anxious to shield than to prosecute appellant. The two women were living together at the time of the trial. They wore each other's clothing, pins and jewelry. She testified that appellant had the right of access to her pocketbook all the time; that she told appellant to watch the pocketbook and billfold when she (witness) went out to dance; that appellant had the right to have possession of her billfold 'because I told her to watch it.'

Again she said:

'Viola often takes care of my pocketbook for me when we are out on parties and when we were out that night. We put our money in each other's pocketbooks; it depends on whose purse we take out * * *.

'Viola would often take my pocketbook and keep it until we two girls would get sobered up and off the parties. Viola had been drinking plenty that night. * * * I don't know if she was intoxicated or not but she had had plenty to drink.'

The witness apparently tries to convey the impression that appellant had the right to take possession of the billfold that night, but the conduct of both women tends to negative the existence of such an arrangement. Mrs. Whitcomb, when she discovered the billfold was missing, immediately complained of the loss, searched the booth and finally announced she was going to the police station to report the matter. On her arrival there she did report it and later assisted the police by herself searching appellant's person. When she found the billfold inside appellant's dress she exclaimed, 'Why this is my billfold.'

There was not a suggestion by either woman that appellant had the right or was accustomed on such occasions to take possession of Mrs. Whitcomb's money. Both must have realized that a serious charge against appellant was implied, yet neither suggested an explanation consistent with innocence.

Appellant's own conduct and written statement are contradictory of any innocent purpose she may have had in taking the billfold. She joined in the search of the tap room booth, allowed suspicion to be directed at all members of the party and pretended her own property had also been taken, 'so no one would suspect me of taking Irma's money.'

Though the evidence indicates they had all been drinking very heavily it expressly negatives intoxication.

We recognize the principle in a criminal case where a greater degree of proof is required to convict, it is our duty more readily to inquire into its sufficiency, State v. Tomlinson, 11 Iowa 401; that the rule is different from that applied in civil cases, State v. Wise, 83 Iowa 596, 50 N.W. 59, and cited cases; see also State v. Carlson, 224 Iowa 1262, at pages 1265, 1266, 276 N.W. 770; and that if the verdict is against the clear weight of the evidence a new trial should be granted, State v. Pilkington, 92 Iowa 92, 60 N.W. 502.

But the evidence here, unexplained, of the conduct of both appellant and Mrs. Whitcomb on the night in question is sufficient to raise a jury question. The trial court and jury saw the witnesses and were no doubt in a better position than are we to appraise the weight of the testimony.

II. There is some discussion by appellant of the statute relating to confessions. Section 13903, Iowa Code...