State v. Latham

• Decision Date: 13 November 1962
• Docket Number: No. 50590,50590
• Citation: 117 N.W.2d 840,254 Iowa 513
• Parties: STATE of Iowa, Plaintiff-Appellee, v. Samuel Howard LATHAM, Defendant-Appellant.
• Court: Iowa Supreme Court

Page 840

117 N.W.2d 840

254 Iowa 513

STATE of Iowa, Plaintiff-Appellee, v. Samuel Howard LATHAM, Defendant-Appellant.

No. 50590.

Supreme Court of Iowa.

Nov. 13, 1962.

Law offices of Lex Hawkins, by Lawrence F. Scalise, Des Moines, for defendant-appellant.

Evan Hultman, Atty. Gen., John Allen, Roland D. Peddicord, Asst. Atty Gen., Harry Perkins, Polk County Atty., and James D. McKeon, Asst. Polk County Atty., for appellee.

SNELL, Justice.

By indictment defendant was charged with the offense of breaking and entering as defined in Section 708.8 Code of Iowa, I.C.A. Upon his plea of not guilty he was tried and found guilty by a jury. The trial court overruled defendant's motions for new trial and for judgment notwithstanding the verdict and sentenced defendant to the penitentiary.

For reversal defendant claims lack of corroboration of alleged accomplices and prejudicial error committed by the prosecutor in final argument.

I. In the early morning hours of July 10, 1961 Jeanette Freeman and Helen Dolly Hill broke and entered a house in Des Moines and stole one rug and half of another rug.

They were arrested on the afternoon of July 11th, admitted the offense and implicated defendant. At the trial they testified for the state and against defendant.

At the trial there was testimony by arresting officers that in defendant's presence the women identified defendant as the one who had helped them steal the rugs.

There was testimony that defendant admitted he was at the scene of the crime and had carried the rugs from the premises and was with the women when the crime was planned.

In his own behalf defendant testified that he picked up the smaller rug from the parking in back of the premises, carried it to his car and took it to Mrs. Freeman's house; changed his clothes and went back to the burgled premises and got the other rug and took it in his car to Mrs. Hill's house.

II. Section 782.5 Code of Iowa, I.C.A. provides:

'Corroboration of accomplice. A conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence which shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.'

Mrs. Freeman and Mrs. Hill were accomplices. Corroboration of their testimony was necessary. 'Whether there was some evidence of this character was for the court to decide; its sufficiency was for the jury.' State v. O'Meara, 190 Iowa 613, 621, 177 N.W. 563, 568; State v. Fletcher, 246 Iowa 452, 459, 68 N.W.2d 99; State v. Gates, 246 Iowa 344, 351, 67 N.W.2d 579.

In State v. Cotton, 240 Iowa 609, 641, 33 N.W.2d 880, 898, it is said:

'This court has repeatedly held that the corroboration need not be of every material fact testified to by the accomplice. The requirements of the statute are met if it can fairly be said that the accomplice is corroborated in some material fact legitimately tending to connect the defendant with the commission of the offense. The corroborating evidence may be either circumstantial or direct. Numerous cases could be cited to this point.' (Citations) See also State v. Gates, supra.

The defendant may himself furnish the corroboration required. State v. Bosch, 172 Iowa 88, 92, 153 N.W. 73, 75. 'The statute does not require that the corroboration, of itself alone, shall be sufficient to make a conclusive case of guilt, or that it shall be entirely inconsistent with innocence. It is sufficient if, when rationally considered, it has some legitimate tendency to connect the accused with the commission of the crime, and thereby lend support to the credibility of the accomplice.' Page 93 State v. Bosch, supra.

In State v. Clay, 222 Iowa 1142, 1146, 271 N.W. 212, 215, it is said 'If the testimony of an accomplice is corroborated by other witnesses in any material point tending to connect the defendant with the commission of the offense, it is sufficient.' (Citations) 'The evidence adduced to corroborate an accomplice need not be strong, and any corroborative evidence legitimately tending to connect the accused with the commission of the crime and thereby lend support to the credibility of the accomplice is sufficient. It is not necessary that the testimony offered as corroboration be entirely inconsistent with innocence.' (Citations)

In the instant case the arresting officers testified that defendant admitted helping the women haul the rugs from the burgled premises and that he was with the women when the plan of stealing was discussed. As a witness in his own behalf defendant admitted carrying the rugs from the premises to his car and hauling them away. There was ample corroboration to generate a jury question.

The jury was fully instructed on the requirements for corroboration. The testimony of the accomplices, together with the corroborating testimony, was sufficient to support the verdict of the jury.

The court did not err in overruling the several motions of defendant urging lack of corroboration.

III. In argument to the jury, counsel for the State in commenting on the necessity for corroboration said, 'A person's testimony is corroborated if it is verified or substantiated or confirmed by any testimony which tends to connect the defendant with the commission of the crime. Now we have met this burden and if we have not met the burden of corroborating the accomplice's testimony, you would not receive this case because that is a legal point with which you cannot be concerned at this time.' Objection was made and the court said, 'The Court will cover that matter in an instruction. You may proceed.' Later in the same argument counsel for the State referred to one of the alleged accomplices as defendant's paramour or mistress. Objections were made.

The Court commented that counsel was making an inference with which the jury might agree or disagree 'it is up to them.'

IV. Mrs. Hill testified that she was defendant's 'girl friend'. There was evidence that defendant had been to her house on many occasions in the past. He furnished his car and was very solicitous in the late evening activities of his girl friend. Hauling rugs from strange premises at 1 a. m. for a girl friend might...