State v. Gillespie

• Decision Date: 14 January 1969
• Docket Number: No. 52866,52866
• Citation: 163 N.W.2d 922
• Court: Iowa Supreme Court
• Parties: STATE of Iowa, Appellee, v. Robert Dee GILLESPIE, Appellant.

Page 922

163 N.W.2d 922

STATE of Iowa, Appellee, v. Robert Dee GILLESPIE, Appellant.

No. 52866.

Supreme Court of Iowa.

Jan. 14, 1969.

R. L. Morgan, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., James R. Martin, Asst. Atty. Gen., and Ray A. Fenton, Polk County Atty., Des Moines, for appellee.

GARFIELD, Chief Justice.

Following indictment defendant Gillespie was tried, found guilty and sentenced for assault with intent to rob Dale G. Craddock, contrary to section 694.7 Code 1966. Defendant has appealed.

The principal errors assigned and argued are: (1) claimed insufficiency of the evidence of guilt; (2) failure to instruct the jury on the defense of alibi; (3) overruling defendant's motion in limine that the state be ordered not to use during the trial certain words thought to be prejudicial to defendant; and (4) refusal of two requested jury instructions. We find no reversible error in any of these assignments.

I. Upon a claim of insufficient evidence of guilt we view the evidence in the light most favorable to the state. Of course it is the jury's function, not ours, to decide disputed fact questions. A verdict of guilty is binding upon us unless we are satisfied it is without substantial support in the evidence or clearly against the weight thereof. State v. Horrell, 260 Iowa 945, 151 N.W.2d 526, 528--529; State v. Stodola, 257 Iowa 863, 865--866, 134 N.W.2d 920, 921 and citations in these opinions.

II. Code section 694.7, so far as applicable, provides: 'If any person assault another with intent to * * * rob * * * he shall be imprisoned * * *.'

Section 711.1 states: 'If any person, with force or violence, or by putting in fear, steal and take from the person of another any property that is the subject of larceny, he is guilty of robbery, * * *.'

The two material matters, outside of venue, involved in the charge under consideration are the making of an assault and the intent to rob with which the assault was made. The intent with which the assault was made is the gravamen of the offense. It was not necessary to allege or prove a completed robbery. State v. Norman, 190 Iowa 472, 474--475, 180 N.W. 151 and citations; State v. Mead, 237 Iowa 475, 478, 22 N.W.2d 222, 223.

III. Craddock, victim of the alleged crime, was the lone attendant at the Mileage service station at 4007 East 14th Street in Des Moines on the night of June 21--22, 1967. He testified that about 1:00 a.m. a two-tone station wagon was parked back of a small cafe at the rear of the station, not on the station property; this was not unusual; he could see the heads of two people in the car but could not identify them; the vehicle remained there an hour or hour and a half; about 2:30 the car was driven onto the station ramp; when Craddock went out to wait on the driver he got out of the car with a gun in his hand, its hammer pulled back, which he stuck in the victim's stomach, forcing him into the station, saying 'You know what this is, don't you?'; Craddock, nervous and 'real scared,' replied that he knew; the witness identified the offender as defendant whom he had seen at the station two or three previous times and also in court and at the police station; defendant ordered him to open the cash register and give him the money; Craddock opened the cash register but told defendant if he wanted the money he'd have to take it; 'if they got the cash register and all, I woudln't have done no arguing;' at this point a young man named Joss, returning from a drive-in 'movie', drove into the station with his girl friend to get 'gas'; Craddock, still scared, ran out of the station and told Joss he was being robbed; when Craddock pointed at defendant, the latter got into the station wagon and drove away; Craddock observed the license number of the vehicle except for one figure and asked Joss to write it down while the witness called police. This led to defendant's arrest about two hours later at the place he resided.

Craddock positively identified defendant. His description of the clothes defendant was wearing corresponds to that given by other witnesses including a cousin of defendant who testified in his behalf. The customer Joss corroborated much of Craddock's testimony as to what happened while Joss was at the station although he was unable to identify defendant as the man who drove away with his companion in the black and white station wagon.

A Des Moines police officer testified he was called to the Mileage station about 2:30 on the night in question to investigate a reported attempt at armed robbery; he received a description of the suspect and the color and license number of his car; with other officers he located a station wagon fitting the description of the one reportedly driven from the service station and arrested defendant at the same address.

Defendant did not testify. He did offer evidence, later to be considered, bearing on his defense of alibi.

Defendant's brief admits the state has shown an assault but it is said evidence is lacking it was accompanied by an intent to rob. The fact a robbery was not completed does not necessarily negative an intent to rob at the time the assault was made. It may be assumed defendant would have been charged with robbery if the crime had been completed. The jury could properly have found that in all probability robbery would have occurred if a customer had not driven into the station while defendant was there.

We think evidence of guilt was clearly sufficient. See State v. Norman, supra, 190 Iowa 472, 474--475, 180 N.W. 151 and citations and State v. Mead, supra, 237 Iowa 475, 478, 22 N.W.2d 222, 223. See also State v. Van, 232 Iowa 34, 36--37, 2 N.W.2d 748, 749.

IV. As provided by Code section 777.18, defendant filed written notice he intended to prove the defense of alibi by several witnesses named therein. He complains that no instruction was given the jury on the subject.

We note incidentally that before reading them to the jury the court submitted to counsel for both sides its instructions in accordance with rule 196 Rules of Civil Procedure. Defendant timely requested two instructions the refusal of which we later consider. Neither referred to the matter of alibi. Defendant filed no request for an instruction on alibi at any time. After the jury was instructed and retired, defendant's counsel stated he had no objection to the instructions as given except that he then orally requested an additional instruction on alibi on two asserted grounds. Defendant, (as permitted by Code section 787.3(5)), did object to the instructions in his motion for new trial on the ground none was given on alibi.

We prefer not to consider what, if any, effect should be attached to the matters above referred to. In this connection the discussion in State v. Baker, 246 Iowa 215, 227--230, 66 N.W.2d 303, 310--311, may be of interest. We are not persuaded it was reversible error not to instruct the jury on the so-called defense of alibi. The form of such an instruction, if one should have been given, is not before us.

'An instruction on alibi should not be given when testimony for a defendant seeks merely to controvert the state's evidence. Under a plea of not guilty, a defendant has a right to show not only that he did not commit the act but that he was doing something else at the time. Where an alibi is claimed, a defendant is attempting to prove not only that he was not present but that he was at another place so remote or under such circumstances that he could not have been present. Unless a defendant is attempting to show the practical impossibility of his presence at the scene of the crime, he is not setting up an alibi * * *. (citations). The question whether an alibi is claimed is not settled by what a defendant contends his defense is. (citation.)' (emphasis added) State v. Dunne, 234 Iowa 1185, 1191--1192, 15 N.W.2d 296, 300.

The Dunne opinion is cited on this point with apparent approval in State v. Baker, supra, 246 Iowa 215, 228, 66 N.W.2d 303, 310, and State v. Gilliland, 252 Iowa 664, 671, 108 N.W.2d 74, 78.

We think the testimony offered for defendant was circumstantial evidence he did not commit that crime charged and direct evidence he was doing something else at the time. Of course this was properly to be considered under his plea of not guilty. The evidence referred to, if believed, would not establish the practical impossibility of defendant's presence at the scene of the alleged crime when committed or that he could not have committed it.

As stated at the outset of Division III, supra, the...