State v. Horrell

Citation151 N.W.2d 526,260 Iowa 945
Decision Date06 June 1967
Docket NumberNo. 52306,52306
PartiesSTATE of Iowa, Appellee, v. Alva Milton HORRELL, Appellant.
CourtUnited States State Supreme Court of Iowa

Jesse, LeTourneau & Johnston, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., David A. Elderkin, Asst. Atty. Gen., Ray A. Fenton, County Atty., and Donald Starr, Asst. County Atty., for appellee.

LARSON, Justice.

The defendant, Alva Milton Horrell, and Eldon Harold Manser were indicted by the Polk County Grand Jury, which charged them with the crime of larceny in the night-time of personal property of the value of over $20.00, as defined in section 709.4 of the 1962 Code. On arraignment defendant entered a plea of not guilty and his separate trial began on May 12, 1966. His motions for directed verdict, made at the close of the State's case and at the time both parties rested, were overruled and the jury brought in a verdict of guilty. When his motion for a new trial was overruled on May 23, 1966, he was sentenced to the Men's Reformatory for a term of not more than ten years. He appeals. We affirm.

Appellant assigns as error (1) the court's failure to grant his motions for a directed verdict and his motion for a new trial when it appeared the evidence was insufficient to sustain a conviction, (2) the giving of an instruction on aiding and abetting when the evidence did not warrant an instruction on that theory, and (3) the giving of an incorrect and improper instruction on aiding and abetting, possession of stolen property, and permissible inferences in such matters. He combines them into questions of evidence, sufficiency and adequacy of instructions when applied to the facts of this case, and argues them pursuant to R.C.P. 344(4)(b).

I. The rules governing our consideration of a claim of insufficient evidence in a criminal case are so well established that they need no extended discussion here. The evidence must be viewed in the light most favorable to the State. It is not our function to decide disputed fact questions in such cases. That is the function of the fact-finder, and its verdict is binding upon us unless we are satisfied it is without substantial support in the evidence or it is clearly against the weight of the evidence. State v. Frink, 255 Iowa 59, 64, 120 N.W.2d 432, and citations.

II. A jury question in a criminal case may be generated solely by circumstantial evidence. State v. Hiatt, 231 Iowa 499, 507, 1 N.W.2d 664, 668, and citations. The quality of the evidence necessary to convict, circumstantial or direct, we have said, must be sufficient to raise a fair inference of guilt. It must generate something more than suspicion, speculation or conjecture. State v. Myers, 253 Iowa 271, 274, 111 N.W.2d 660; State v. Wesson, Iowa, 149 N.W.2d 190, 194.

In State v. Miskell, 247 Iowa 678, 686, 687, 73 N.W.2d 36, 41, we stated the rule thus: 'In a criminal action the cause should be submitted to the jury and the court should not direct a verdict of acquittal if there is any substantial evidence reasonably tending to support the charge. * * * the State's evidence, with all reasonable inferences therefrom, must be taken as true and viewed in the light most favorable to the State, and it is necessary to consider only the evidence which tends to support the verdict.'

III. The common purpose among two or more persons to commit a crime need not be shown by positive evidence, but may be inferred from the circumstances surrounding the act and from one's conduct before, at the time of, and after commitment of the illegal act. State v. Kneedy, 232 Iowa 21, 28, 3 N.W.2d 611, and citations. In such cases the evidence which would support a conviction as a principal ordinarily would also support a charge as an accessory, for the distinction between a principal and accessory before the fact has been abrogated in this state. Section 688.1, Code 1966. Any participation in a general felonious plan, providing that such participation be concerted and that there is evidence of actual or constructive presence at its commission, is generally held sufficient to render one criminally liable as a principal. State v. Kneedy, supra.

Knowledge or intent is usually inferred from the circumstances. State v. Van, 232 Iowa 34, 2 N.W.2d 748. Participation therein may be inferred from presence, companionship, and conduct before and after the offense is committed. State v. Myers, supra; 22 C.J.S. Criminal Law §§ 87 and 88.

We do not know whether the jury found defendant guilty as a principal or as an aider and abettor, but since both issues were submitted, his conviction must rest upon both. If his conduct, unexplained during the period of time involved, was sufficient to sustain an inference of guilt and was inconsistent with any rational theory of innocence, the conviction must be upheld. It is for the jury to decide as to the truth and veracity of the explanation. State v. Daves, Iowa, 144 N.W.2d 879, 881; State v. Myers, supra, 253 Iowa 271, 274, 111 N.W.2d 660, 662.

With these rules in mind, our preliminary inquiry here is whether the evidence, properly viewed, creates more than a suspicion of defendant's participation and guilt in this matter. After a careful study of the evidence and consideration of the permissible inferences, we conclude that it does. There is no substantial conflict in the evidence, which reveals the following facts and circumstances.

IV. It appears defendant had been living in Marshalltown, had recently been separated from his wife and child, and had come to Des Moines about two weeks prior to March 27, 1966, on his way to his former home in Texas. He met an old friend, Eldon Manser, who worked at a parking ramp, obtained work at the same place and roomed with Manser while he earned money to finance his contemplated trip. Manser owned a car and also planned a trip south.

After work on Saturday, March 27th, they received their pay and a gift of two used tires from their foreman, went to their room to clean up, pack, and put their things in the car, and then went out to a service station in West Des Moines to have the car serviced and the tires changed and rotated. They arrived at this station about midnight. Defendant left a $20.00 deposit to cover the work the attendant was asked to do while they walked to a nearby tavern. The tavern being closed, defendant and Manser returned and hung around inside the building while the sole attendant, Jerry Dean Kerr, worked on their car and also serviced cars in the drive needing gas. As it was cold, the overhead doors to the wash and oil change bays were kept closed, and side doors were used for ingress and egress. With these interruptions it required about an hour and a half to complete this job.

Mr. Kerr recalled an unusual occurrence while he was working on the car's left front wheel. Someone came from the washroom, where some tires ready for mounting were kept at that time, opened the right rear door of the car, and put something in the back seat, although the car was some two feet off the ground on the hoist. He said it was one of the two, but he could only see the party's feet at the time. Neither defendant nor Manser said anything about the purchase of tires, and no other persons were in or about the bay area during that period.

Mr. Kerr testified he observed the back seat of this car when they came to the station, and noted a pile of clothes in the left corner behind the driver. When the work was finished, Manser drove the car out of the bay to the gas pump, and defendant went into the office to settle up for the gas and service. While filling the gas tank, Kerr again looked into the back seat and saw a coat which laid over a form about the size of a tire.

About this time the station owner's 18-year-old son, Robert Field, came in and Kerr asked him to look in the back seat of the car to see if he could see anything he thought these men had taken when he was out of the building. Robert testified he went out to look and it appeared to him there was a tire in the rear seat with a cover over it.

Shortly thereafter Officer Ward, of the West Des Moines Police Department, stopped and parked his patrol car in the drive. Kerr told the officer of his suspicion when he came in from filling the gas tank. At that time they observed Manser drive slowly away, leaving defendant in the station office to settle their bill. Defendant then left and walked down the street. Officer Ward took off after Manser and the car to check it out, lost it but returned in time to see Manser pick up the waiting defendant and drive toward Des Moines on Grand Avenue. He gave chase and, after some difficulty, stopped the car in the 5900 block. Ward testified when the driver got out and started back toward the patrol car he left his door open. After looking at Manser's driver's license, Ward walked up and looked into the car. He could see tires partially covered with clothing on the back floorboard of the car. They were not visible from the top, but were at the side. The defendant was sitting in the passenger's seat at that time. The officer radioed for assistance to take them back to the police station. Defendant did not give his correct name until a later search of his luggage on the back seat of the car revealed his true identity. Pursuant to obtaining a search warrant, a search of the car revealed three tires taken from the station, which had been in a pile of four stacked in the washroom for mounting on a customer's car the next day.

Appellant denied any knowledge of the tires found in the car and said he knew nothing of any plan to steal anything at that service station. He testified the first he knew that the tires had been stolen was 'when the officer informed us about the tires.' He explained the alias by saying he did not want his wife to find him in Iowa. He denied taking part in the stealing of the tires, but admitted 'there was a beer can or bottle put in the car while the car was being worked on at the...

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