State v. Keyser

• Decision Date: 20 October 1964
• Docket Number: No. 51371,51371
• Citation: 257 Iowa 73,130 N.W.2d 701
• Parties: STATE of Iowa, Appellee, v. Wayne KEYSER, Appellant.
• Court: Iowa Supreme Court

Page 701

130 N.W.2d 701

257 Iowa 73

STATE of Iowa, Appellee, v. Wayne KEYSER, Appellant.

No. 51371.

Supreme Court of Iowa.

Oct. 20, 1964.

Rehearing Denied Dec. 14, 1964.

Julius L. Sherwin, Chicago, Ill., and Norman William Seemann, Waterloo, for appellant.

Evan L. Hultman, Atty. Gen. of Iowa, and John H. Allen, Asst. Atty. Gen., for appellee.

LARSON, Justice.

On March 7, 1963, defendant was indicted for the crime of conspiracy in violation of Section 719.1, Code 1962, I.C.A. Pursuant to his plea of not guilty, trial was had October 14, 1963, and the jury returned two verdicts finding him guilty as charged in Counts I and II. Judgment was entered January 17, 1964, and he was sentenced to a term of not to exceed three years imprisonment in the State Penitentiary at Fort Madison, Iowa, on each count, the sentences to run concurrently. Defendant appealed.

The indictment originally contained three counts. Count I charged, in substance, a conspiracy between Keyser and Coffman to defraud Alter Company. Count II charged a conspiracy to defraud Deere & Company and Count III charged a conspiracy to break and enter the Waterloo Railroad Company Scale Building. Count I further alleged that the conspiracy there alleged was committed in the same transaction as the conspiracies alleged in Counts II and III. Count I further alleged that the conspiracy there alleged was committed in the same transaction as the conspiracies alleged in Counts I and III. Count III further alleged that the conspiracy there alleged was committed in the same transaction as the conspiracies alleged in Counts I and II. Count III was not submitted to the jury.

For the sake of brevity the abbreviations utilized by counsel will be used herein: Alter Company as Alter, Deere & Company as Deere, Waterloo Railroad Company as Waterloo, James Coffman as Coffman, and the defendant Wayne Keyser as Keyser.

Throughout the trial defendant made numerous objections to the evidence. His argument follows three assignments--his objection to evidence of the shortage in the Deere scrap metal pile, especially as it related to 41 cars of scrap he sold to Alter between May and October, 1962; his objection to testimony relating to the last seven cars involved for the reason that three cars were not sold to Alter or Deere and four were never actually consigned or sold to anyone; and his objection to a hypothetical question put to the State's scale expert. However, his principal contention appears to be that there was insufficient competent evidence of a conspiracy to support a jury verdict as to him.

Motions for directed verdict as to Counts I and II made at the close of the State's case, and again at the close of all evidence, were denied and error is predicated thereon.

I. In considering the sufficiency of the evidence it is necessary to refer only to that which tends to support the verdict. State v. Poffenbarger, 247 Iowa 552, 554, 74 N.W.2d 585, 586, and citations; State v. Olson, 249 Iowa 536, 558, 86 N.W.2d 214. Of course this evidence must be viewed in a light most favorable to the State. State v. Harless, 249 Iowa 530, 531, 86 N.W.2d 210, 211; State v. Poffenbarger, supra.

The following is a summary of the evidence the State claims does tend to support the jury verdict.

During the period involved herein, from May to November 15, 1962, Keyser was a dealer in scrap iron and steel operating in the Waterloo vicinity. Alter is a broker acting in behalf of its customers, including Deere, a user of scrap. Deere would issue a purchase order to Alter for a certain number of carloads of scrap and Alter would contact dealers such as Keyser and get commitments from them sufficient to fill the order from Deere. During the period from May until October, 1962, Keyser furnished 41 cars of scrap for Deere pursuant to orders from Alter. When Alter received the bills of lading and certified weight tickets from the Waterloo railroad on delivered cars of scrap, it would advance 75% of the value of same to the dealer, and the balance would be paid usually within thirty days when Alter was paid by the user, Deere in the case of these 41 cars. There was testimony that agreements between Alter and the dealers, including Keyser, for the purchase of scrap to fill orders for users such as Deere, were generally made verbally and were followed up with paper work.

On November 13, 1962, Charles Smith, vice-president of Alter, called Keyser by telephone to inquire about three cars of scrap he understood were being loaded in the Waterloo yard. Keyser told Smith those three cars were not for Alter's account, but that four other cars being loaded were. Those car numbers were D.R.G.W. 55207, P.R.R. 347458, P.L.E. 40992, and P.R.R. 374685. Upon this commitment Smith noticed these cars to Deere. They were applied against an open purchase contract with Keyser which showed shipment to Deere. It also appeared the three cars Keyser said were not for Alter's account were C.B. & Q. 82287, D.R.G.W. 55207, and P.R.R. 612797.

Frank Krieg, purchasing agent of Deere during 1962, testified it was Deere's policy to build up its scrap reserve during the months of August, September, and October, but when it appeared that stock was not increasing in spite of its added purchases, an investigation of the estimated shortage was undertaken by Deere in November, 1962.

Keyser used the weighing facilities of Waterloo during the period from May to November, was present most of the time weighing was done, and would direct to whom the cars of scrap were to be billed through the Waterloo freight office. In each past instance the consignee was Deere. On November 7, 1962, he had three cars of scrap weighed at the Waterloo yards and was present in the scalehouse with the weighmaster when they were weighed. They were the three Keyser told Smith were not for the Alter account, but originally the three bills of lading were made out at the Waterloo freight office by Coffman, an employee of Keyser, consigning these cars to Deere from Alter. The gross weight of each car, which is the sum of the light weight and net weight, was 200,400 lbs. for D.R.G.W. 55207, 203,100 lbs. for C.B. & Q. 82287, and 192,700 lbs. for P.R.R. 612797. The following week Keyser changed the name of the shipper on these bills from Alter to West End Iron & Metal.

Pursuant to the Deere investigation of its scrap shortage, the same three cars were reweighed at the Borden plant adjacent to Deere's yards. The gross weights at that time were 114,300 lbs. for D.R.G.W. 55207, 120,900 lbs. for C.B. & Q. 82287, and 108,100 lbs. for P.R.R. 612797, a difference of some 84,000 lbs. per car. A conference resulted between police officials and a special agent, Darrell Pepperling of the Illinois Central Railroad, and when the four empty gondola cars were placed at Keyser's disposal in the Waterloo yard to be loaded, they were kept under surveillance. On November 12, 1962, Keyser's trucks arrived and his men commenced loading the cars with scrap iron.

At approximately 5:30 A.M. on November 15, 1962, Keyser asked to have his cars of scrap weighed and shortly thereafter the weighmaster began weighing them. The weighmaster Ray DeBerg testified he 'asked Mr. Keyser there if these cars were going to Deeres, he said they was.' After weighing them they were lined up with a 'drag' going to Deere's. The gross weights of the four cars recorded at that time were 207,300 lbs. for P.L.E. 40992, 196,400 lbs. for P.R.R. 347458, 188,000 lbs. for P.R.R. 374685, and 188,600 lbs. for D.R.G.W. 55207. These were the four cars Smith said Keyser told him would be consigned to Deere for Alter's account.

At about 6:15 A.M. of the same morning Special Agent Pepperling, Captain Beener and Patrolman Henry of the Waterloo Police arrived at the Waterloo yards. After the four cars had been weighed, Captain Beener had a short talk with Trainmaster Bingham at the scalehouse and then motioned for Henry and Pepperling to join them. Pepperling entered the scalehouse, removed the iron grate covering the entrance to the pit housing the scale mechanism, and went down into the pit. He testified he shined his flashlight around the pit and saw a man wedged up between the rafters. The man came down at his order and the officer followed him up the ladder and out of the pit. He was then taken into custody by the Waterloo officers, and Bingham ordered the four cars of scrap to be reweighed.

The intruder told Captain Beener his name was James Coffman and said he was a truck driver for Wayne Keyser, who had remained in the vicinity during these events. Captain Beener testified Keyser asked if he could speak to Coffman alone, that he refused but said they could talk in his presence. That offer was not accepted. Keyser admitted Coffman was his driver and testified he said to Coffman, 'Just tell your name and address and nothing else.' The other officers present testified Keyser advised Coffman several times to give only his name and address to the police and 'everything will be all right.' Coffman had worked for Keyser in Waterloo from August, 1962, and had worked for him off and on at other places.

When the four cars were reweighed it was found car P.L.E. 40992 weighed 127,500 lbs., car P.R.R. 347458 weighed 116,700 lbs., car P.R.R. 374685 weighed 108,000 lbs., and car D.R.G.W. 55207 weighed 107,600 lbs.--a a difference of some 79,000 lbs. per car.

Coffman's weight was estimated at approximately 150 lbs., and a scale expert Kevin L. Baker, in response to a hypothetical question, testified that a 150 lb. weight placed approximately 18 inches from the end of the traverse lever in the scale pit would add approximately 78,000 lbs. to the total weight of a railroad car.

Coffman was unavailable as a witness, but Keyser admitted on cross-examination that only he would stand to profit by the manipulation of the traverse bar of the scale.

II. The crime of conspiracy is a combination or agreement between two...