State v. Lehlan

• Citation: 158 Iowa 183,139 N.W. 475
• Parties: STATE v. LEHLAN.
• Decision Date: 14 January 1913
• Court: Iowa Supreme Court

158 Iowa 183

139 N.W. 475

STATE

v.LEHLAN.

Supreme Court of Iowa.

Jan. 14, 1913.

Appeal from District Court, Linn County; Milo P. Smith, Judge.

The defendant appeals from conviction of larceny from a building. Reversed and remanded.Crosby & Fordyce, of Cedar Rapids, for appellant.

George Cosson, Atty. Gen., and John Fletcher, Asst. Atty. Gen., for the State.

LADD, J.

[1][2] The defendant and one Harry Borsky, alias Ike Polsky, were jointly indicted for the larceny of several bolts of silk from the store of Welsh-Cook Company in Cedar Rapids. The defendant elected to be tried separately, and argues that the court erred in receiving testimony of the acts and declarations of Borsky in promotion of an alleged conspiracy to steal silks from said store. The evidence tended to show that he and Borsky had registered under assumed names at the Grand Hotel September 18, 1911, and had occupied the same room until the afternoon of September 20th; that on September 19th at about 12:30 o'clock defendant went to the second floor of said store and stood at the silk counter for a few minutes examining the silk and looking about the room, observed a clerk leave for lunch, and talked with the one remaining, followed him to the blanket counter, and told him he would not wait longer for his uncle, and requested the clerk, if his uncle came, to say he would be back about 1:30 o'clock. He did not return, but on the next day Borsky and Robinson came at about the same time--that is, 12:30 o'clock--the former bringing from his room at the hotel a large satchel. This was set down at the top of the stairs, and they advised the manager who had followed them that the firm of Robinson & Cone was transferring a stock from Sioux City to Davenport and they would like to look at blankets. Borsky represented himself as Cone and started for the blanket department with the only clerk on that floor; the other having departed for lunch, as on the day previous. Robinson talked with the sales manager for a few minutes, when the latter returned to the first floor. After looking at blankets near by, Borsky asked to see the woolen blankets, and the clerk took him to a distant part of the floor out of view of the silk counter, and there the latter examined the stock for 10 or 15 minutes. But he did not buy them, as his store was not ready. Requesting a list with prices and the clerk's name, he said he had not had dinner, and he would have to go, shook hands with the clerk several times, took his satchel, and departed down the elevator with Robinson. In the afternoon the clerk who had stepped out to lunch discovered that about 14 bolts of silk were missing. On the afternoon of September 21st, at about 2:30 o'clock, Borsky called at the dry goods department of Rudge-Gunsel Company in Lincoln, Neb., and began negotiating for the sale of silks which he claimed to have received in trade and later submitted samples of silks like those stolen. The buyer insisted upon seeing the goods. A deal was not made, but he saw Borsky and defendant together at the Lincoln Hotel the next morning. The defendant registered at the Savoy House at that place in the afternoon of the 22d and remained until the 25th, Borsky sharing his room, and on the later date they left and were seen thereafter entering the Star Rooming House, joining the hotel, two or three times. They were arrested at about 2 o'clock in the morning of September 27, 1911, and, upon searching room 61 of the Star Boarding House, the satchel Borsky had at the store in Cedar Rapids and several bolts of silk missed therefrom were found. A collar of size suitable for defendant was found in a hand bag in the room. From this evidence, the jury might well have inferred the existence of a scheme or plan between Borsky and defendant to commit the offense, and, this being so, the rulings by which testimony of the acts and declarations of Borsky in promotion thereof was rightly admitted.

[3] II. John Schmitt, after testifying that he was a police officer of Lincoln, Neb., and that he was detailed to arrest defendant and locate the stolen silk, was asked to “state whether or not prior to that time (when they were arrested) you had heard Lehlan and Polsky were occupying room 61 at the Star Rooming House.” An objection “as calling for hearsay,...