State v. Kobylasz, 47678

CourtUnited States State Supreme Court of Iowa
Citation47 N.W.2d 167,242 Iowa 1161
Docket NumberNo. 47678,47678
Decision Date04 April 1951

Joseph Z. Marks, and Verne Lawyer, of Des Moines, for appellant.

Robert L. Larson, Atty. Gen., Don Hise, Asst. Atty. Gen. and Robert O. Frederick, County Atty., Winterset, for appellee.

SMITH, Justice.

Defendant, in 1949, operated a taxi service in Winterset, Iowa. The prosecuting witness, Mary Wells, was an employe of the Ben Franklin Store and had been employed at various places during the six years she had resided in Winterset. She had used defendant's taxi service at various times including one trip to Missouri, about 120 miles. She admits 'I * * * sometimes requested that Jan drive the cab, but I didn't make that request every time.'

She testifies that on the night in question (October 3, 1949, 'at approximately 10:00 in the evening') she called defendant to take her to the Dean Moore residence (five blocks away) in the east part of town. She says when they arrived there defendant refused to stop but drove on out to the Miller Burns farm northeast of town. She relates a bizarre story to the effect that he took her into the house where he and Burns drank whiskey while she 'sat there in a chair (a mere spectator) until approximately 12:00 o'clock midnight.' She says she then 'went out to the taxicab and laid down in the back seat alone' for about an hour. Burns once came out to inquire if she was 'mad.' She says she denied being angry but told him she wanted to go home.

According to her testimony defendant later came out angry 'because I had gone out to the taxi but he got in the cab.' He started to drive her home. She says he stopped at a 'corner south of the golf course' and upon her refusal 'to go out with' him demanded payment of an alleged $500 taxi account which he would settle for $200. When she denied owing him he called her a liar and struck her twice with the back of his hand.

There follows her further testimony: that he told her to write a check for $200 which she refused to do because she didn't 'have any money in the bank'; that they (at her request) returned to the Burns farm from which they had been gone about three quarters of an hour; that Burns came out and got in the car; that she and defendant briefed him on the situation; that after talking for over an hour Miller went into the house to get his hat and shoes (defendant says: 'He didn't have no shoes or pants on, just a blue denim shirt') preparatory to going with them into town (at defendant's request); that 'Jan (defendant) started the car and I grabbed the switch keys and threw them into the bottom of the car.'

The testimony becomes increasingly difficult to condence and translate into coherent form. The keys were retrieved after the witness had again thrown them (this time outside the car). Defendant twisted her arm while she screamed for Miller to come out. Miller got into the car. Defendant wanted to know where they were going and Miller said they were going to town and he 'wasn't going to see me hurt.' Defendant threatened 'I am going to get her job and I am going to break every bone in her body if she don't sign that check' and ordered Miller out of the car.

After Miller got out they went some distance. Defendant stopped the car and eventually compelled the witness to sign the $200 check using his pencil. They had gone back past the Burns farm before this was accomplished and the witness had been prevented from leaving the car by threats and a gun in her back.

For some unexplained reason the witness by this time was on the front seat with defendant. Her pocket book was on the seat between them. He picked it up and she inquired what he was going to do with it. He took her billfold out and after going through it 'stuck it in his pocket.' She says the billfold contained $27 and that he refused to give back her social security card or even 'at least enough money to pay my room rent, because I don't have any other money.'

According to her testimony they returned to town about 6:30 A.M. and she did not see defendant again until the following day when he came into the store where she worked and wanted her to return his pencil, presumably the one with which she had signed the check. After some argument he went out but returned in 15 or 20 minutes. He refused to return her billfold and stated he intended to keep it. When the witness threatened to call the store manager defendant said 'I am going to take this (the billfold) to the sheriff. I have got your billfold here and plenty enough evidence in it. I can throw you in jail.' The witness filed complaint that night in Justice Court.

The resulting indictment charges defendant with the crime of robbery in that he 'did rob Mary Wells of a billfold containing $27 in money together with other articles of value, the said Jan Kobylasz being then and there armed with a dangerous weapon with intent, if resisted, to kill or maim the said Mary Wells, and * * * did commit said robbery with force and violence, and did strike the said Mary Wells at the time of said robbery, contrary to the laws and statutes * * *, towit, Section 711.1 of the 1946 Code of Iowa [I.C.A.].'

That the testimony of defendant and Miller Burns presents a quite different picture of what took place that night is not surprising. Even the cross-examination of prosecutrix elicited that she and defendant had been out to the Burns place at least twice before when they were alone and 'a time or two there was someone else there but I don't recall their names.' Burns testifies: 'She came there with Jan Kobylasz, and had been there on other occasions, but I can't state how many.' He says all three had been drinking whiskey. Defendant says they had been out there 'probably a dozen times or more, meaning Mary and myself.' He testifies they went the night in question by pre-arrangement. 'That was the agreement, to go out there and have a little fun.' It was for the jury to determine between the conflicting accounts.

Both men testify they ran out of liquor during the night and drove into town and got more. Burns says defendant and Mary were at one time in the bedroom alone for a short time 'and Mary Wells never made any complaint to me that Mr. Kobylasz was mistreating her.'

Defendant and wife operated a 'beer tavern and a taxi line.' The wife testifies 'the last two beer permits were in my name.' She says defendant was 'addicted to the use of alcoholic beverages,' at times to excess. She also says prosecutrix from time to time placed a call for taxi service and would specify defendant was to drive her. On one occasion, when Mrs. Kobylasz told her they had a driver working on a percentage and wanted 'to give him all the work we can,' she says Miss Wells 'didn't act real friendly' and after that would hang up if defendant wasn't there.

Three character witnesses reported Miss Wells' reputation for moral character as bad. One of them gave like testimony as to her reputation for truth and veracity.

The trial court instructed on robbery with aggravation, robbery, larceny from the person, larceny, assault with intent to rob, assault with intent to inflict great bodily harm, assault and battery, and simple assault, and submitted verdict forms accordingly. The verdict was for larceny from the person, the sentence, 15 years in the state penitentiary. Defendant appeals.

I. Defendant contends first that the trial court erred in submitting larceny from the person as an included offense. The contention seems to be conclusively answered by the Iowa decisions. See State v. Taylor, 140 Iowa 470, 473, 118 N.W. 747, where earlier cases are cited in support of the proposition that larceny and larceny from the person are included in the offense of robbery; State v. Schell, 172 Iowa 127, 129, 153 N.W. 62. In the last cited case, 172 Iowa at page 130, 153 N.W. 62, it is held the fact the larger and the lesser offenses are not covered by the same statute is immaterial. See also the language in State v. Davis, 236 Iowa 740, 744, 19 N.W.2d 655.

II. Defendant cites the case of State v. Graff, 66 Iowa 482, 483, 24 N.W. 6, 7, to the proposition that larceny from the person is committed by 'stealth,' and robbery by 'force or violence, or by putting in fear'. He complains that the instruction given on larceny did not include the element of 'stealth.' The apparent argument is that in order to constitute larceny from the person the taking must be clandestine--without the knowledge of the owner.

Our statutory definitions of larceny and larceny from the person do not include secrecy or ignorance of the owner as a necessary element. See sections 709.1 and 709.6, Iowa Code 1950, I.C.A. Despite the quoted dictum in the Graff case, supra, we find no case that holds secrecy necessary. In 52 C.J.S., Larceny, § 7b, it is said: 'In the absence of statutory provision to the contrary secrecy is not itself an element of larceny, but is only an evidentiary fact from which a felonious intent may be inferred; and the offense may be committed, although the property is taken with the owner's knowledge, if he does not consent to the taking.' And see also id. § 8a as to Larceny from the Person.

In State v. Fisher, 106 Iowa 658, 77 N.W. 456, a conviction of larceny from the person seems to have been sustained without discussion of 'stealth' where the property was snatched from the prosecuting witness' hand. In fact, anciently, 'stealth' meant merely 'the wrongful taking of goods without pretense of title.' See Black's Law Dictionary, 3rd Ed., page 1658.

Early in the history of our court it was said: 'The word 'steal' has a uniform signification, and in common as well as legal parlance, means the felonious taking and carrying away of the personal goods of another.' State v. Chambers, 2 G.Greene 308, 311.

III. Defendant's complaint of the instruction (submitting larceny from the person) and the verdict based thereon seems also to be that there was no...

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