State v. Hopkins

• Decision Date: 15 December 1971
• Docket Number: No. 54589,54589
• Citation: 192 N.W.2d 747
• Parties: STATE of Iowa, Appellee, v. Wallace Eugene HOPKINS, Appellant.
• Court: Iowa Supreme Court

Page 747

192 N.W.2d 747

STATE of Iowa, Appellee, v. Wallace Eugene HOPKINS, Appellant.

No. 54589.

Supreme Court of Iowa.

Dec. 15, 1971.

Review Denied Jan. 22, 1972.

Upton Kepford, Waterloo, and Lawrence Gilchrist, Hampton, for appellant.

Richard C. Turner, Atty. Gen., James W. Hughes, Asst. Atty. Gen., Lee Blum, County Atty., for appellee.

MASON, Justice.

Wallace Eugene Hopkins, Dale Armstrong and Shirley Buttolph were charged by a county attorney's information in separate counts with the crime of false pretenses contrary to section 713.1, The Code and with conspiracy contrary to section 719.1.

It was alleged in count I that between June 15 and August 17, 1968, Hopkins, Armstrong and Mrs. Buttolph with intent to defraud, aided and abetted David Lee Nothdurft in obtaining $11,000 from Cora Sahr by means of false pretenses and fraud.

In count II it was alleged Hopkins and the others conspired together and with David Lee Nothdurft to obtain $11,000 from Cora Sahr by means of false pretenses and fraud.

Hopkins, Armstrong, Mrs. Buttolph and David Nothdurft were the sole parties alleged to be involved in the conspiracy to defraud charged in this count.

Following his plea of not guilty Hopkins was separately tried by a jury and convicted of both counts. The Franklin district court sentenced Hopkins upon his conviction of false pretenses to the state penitentiary for a term not to exceed seven years and for a term not to exceed three years on the conspiracy charge. The sentences were to run concurrently. Hopkins was ordered to pay the costs of the prosecution.

Inasmuch as we are concerned only with Hopkins' appeal, at times he will be referred to as defendant.

In the only error assigned defendant questions the court's rulings admitting testimony of the State's witnesses over his objections.

He maintains admission of testimony of Cora Sahr and Minnie Fischer with reference to loans made by them to him and Armstrong in March 1965 and in July 1968 was reversible error. Hopkins argues admission of testimony with respect to certain insurance transactions involving Mary Koep also constitutes reversible error.

The statutes upon which the information is based follow:

'713.1. False pretenses. If any person designedly and by false pretense, or by any privy or false token, and with intent to defraud, obtain from another any money, goods, or other property, or so obtain the signature of any person to any written instrument, the false making of which would be punished as forgery, he shall be imprisoned in the penitentiary * * *.'

'719.1. 'Conspiracy' defined--common law. If any two or more persons conspire or confederate together with the fraudulent or malicious intent wrongfully to injure the person, character, business, property, or rights in property of another, or to do any illegal act injurious to the public trade, health, morals, or police, or to the administration of public justice, or to commit any felony, they are guilty of a conspiracy, and every such offender, and every person who is convicted of a conspiracy at common law, shall be imprisoned * * *.'

The testimony complained of related to other transactions than the one with which defendant was charged.

The State maintains Mary Koep's testimony was admissible to show intent and motive and evidence of the lending transactions which occurred in March of 1965 and July of 1968 was admissible to show Hopkins' conspiratorial conduct and the manner in which he aided and abetted commission of the crime of obtaining money by false pretenses from Cora Sahr.

In State v. Armstrong, 183 N.W.2d 205, 207--209, (Iowa 1971), in discussing competency of evidence of other reasonably similar or like offenses by defendant to the one on which the prosecution is based, this court said:

"The state cannot prove against a defendant any crime not alleged in the indictment, either as a foundation for separate punishment or as aiding the proofs that he is guilty of the crime charged. The exceptions to the rule may be classified as follows: Evidence as to other offenses is competent to establish (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme embracing the commission of two or more crimes so related to each other than proof of one tends to prove the others, and (5) the identity of the person charged with the commission of the crime on trial.' * * * (citing authorities)

"It is established by the great weight of to each other that proof of one tends to money or property by false pretenses, or attempting to do so, evidence that the accused, at about the time of the offense charged, made similar false representations or engaged in similar fraudulent dealings is admissible as tending to show a fraudulent intent or motive in the transaction on which the prosecution is based,--as where a plan or scheme to defraud other victims than the complaining person or persons is indicated.' * * * (citing authorities).'

Defendant recognizes the principles enunciated in the Armstrong opinion and admits that by way of proof with respect to the false pretense charge, evidence of other like or similar false pretense offenses, if not too remote, is admissible to establish certain elements of the crime charged such as motive or intent providing the extraneous testimony offered is in no manner speculative. Hopkins argues the commission of such other offenses must be established beyond a reasonable doubt. His contention in respect to proof beyond a reasonable doubt being required for admissibility is without merit.

In State v. Armstrong, 183 N.W.2d at 208, we quoted with approval this statement from State v. Yarham, 206 Iowa 833, 840, 221 N.W. 493, 496:

"* * * Proof of similar transactions involving crime must be clearly shown. Mere suspicion is not enough. The evidence must be such that there can be no room for speculations in the minds of the jury whether the similar crimes attempted to be shown were actually committed or not."

In reference to count II charging conspiracy to defraud, although conceding evidence of other like offenses, other conspiracies to defraud, might be used to establish motive or intent, defendant argues attempts to show another claimed conspiracy other than one involving fraud are inadmissible.

Some recital of events leading to the charges made in the information could be helpful to an understanding of the relationship of the challenged evidence to that offered in support of the principal offense and the object of the conspiracy.

David Nothdurft, who had been convicted of two felonies involving obtaining money by false pretenses from Cora Sahr and Minnie Fischer, testified as a State's witness. He became acquainted with defendant when both were selling insurance in Florida. Nothdurft first heard of Mrs. Sahr and Miss Fischer in the summer of 1968 after he and Hopkins had returned to Iowa with a plan to sell insurance. Whether the plan was actually formulated in St. Louis or after arrival in Iowa is not entirely clear from the record. However, this fact is not deemed important. Nothdurft testified that under the arrangement they were going to sell for Wabash Life Insurance Company although neither was licensed by that company. Defendant was to furnish names of old customers and Nothdurft was to do the selling and the commissions were to be split fifty-fifty.

Before talking to the sisters the first time at their home in Hampton, Nothdurft talked to Hopkins, Dale Armstrong and Shirley Buttolph so that he might be better versed on the past history of the sisters with insurance in order to make a better presentation. Hopkins told Nothdurft he was acquainted with these ladies through selling them insurance in several companies; they were financially able.

Nothdurft met with Hopkins, Armstrong and Mrs. Buttolph at a Hampton restaurant before going to the sisters' home the first time. After some conversation with these three, Nothdurft went to the home and introduced himself as 'Robert Stone' saying he was representing Bankers Life and Casualty. After talking with the two ladies about insurance, Nothdurft was given two checks, one for $1000 and one for $500, both payable to Bankers Life and Casualty. Nothdurft then returned to the others and discussed this situation. It was later decided the checks should be returned without making an effort to place the insurance through Bankers Life. In returning the checks, the name 'Robert Stone' was placed in the return address on the envelope. The other three were present when this was done and all were aware Nothdurft was using the name 'Robert Stone' and that the checks were being returned.

Following some later telephone calls to the sisters, Nothdurft made another visit to their home July 3, 1968. Defendant was with Nothdurft in Hampton but didn't go to the home. On this occasion Nothdurft again used the name 'Robert Stone' but represented himself as being an agent of Wabash Life Insurance Company. As a result of this visit, Nothdurft obtained checks in the amount of $1000 and $500 with the name of the payee left blank. These checks were given as a down payment on a $10,000 premium policy for each of the ladies.

After receiving the checks, Nothdurft, defendant, Armstrong and Mrs. Buttolph met at a tavern in Riceville, Iowa. Before entering the tavern the matter of cashing the checks was discussed by all four. Eventually, Mrs. Buttolph wrote the name 'Robert Schwartz' as payee and endorsed each check with that name. Only the $500 was cashed in Riceville. The proceeds of that check were divided equally. The $1000 check was taken by Mrs. Buttolph to her bank for deposit. She received approximately $500 in cash and the rest was deposited in her account. Nothdurft received his one-fourth share of the $1000 check from the cash.

Some time later Nothdurft returned to Hampton and received two checks for $10,000 each from Mrs. Sahr and Miss Fischer. The proceeds of these checks were later divided between...