State v. McClelland, 52960

• Decision Date: 12 November 1968
• Docket Number: No. 52960,52960
• Citation: 162 N.W.2d 457
• Parties: The STATE of Iowa, Appellee, v. Jack McCLELLAND, Appellant.
• Court: Iowa Supreme Court

Page 457

162 N.W.2d 457

The STATE of Iowa, Appellee, v. Jack McCLELLAND, Appellant.

No. 52960.

Supreme Court of Iowa.

Nov. 12, 1968.

Harold G. DeKay, Atlantic, for appellant.

Richard Turner, Atty. Gen., William A. Claerhout, Asst. Atty. Gen., and Coral F. Greenfield, Bayard, County Atty., for appellee.

RAWLINGS, Justice.

Charged by indictment with the crime of breaking and entering a store with intent to commit larceny in violation of section 708.8, Code, 1966, defendant entered a not guilty plea, trial to jury resulted in a verdict finding him guilty of offense charged, and from judgment of conviction, he appeals. We affirm.

The record discloses that about 1:30 A.M., December 19, 1966, Donald Carrick, Adair Town Marshall, accompanied by Duane Avey, saw a stalled 1962 white Chevrolet, bearing Nebraska license No. 1--T8278, on a street of the business section of the town, and in accord with request made, helped start the vehicle by pushing it.

Carrick then began his customary second round check of business establishment back doors, all of them having been previously found locked.

During this second tour of inspection the marshall noticed defendant on the street and stopped him. Defendant then opened his coat revealing a large screwdriver inside the belt, and was briefly 'frisked', but nothing taken from him.

At a service station to which defendant was taken, he was perfunctorily searched by Carrick, and asked to produce identification papers, but was unable to do so stating they were in the 1962 Chevrolet. About that time, the vehicle was seen going south past the station. The highway patrol was then called and told to seize the car.

A short time later highway patrolman Curd arrived, searched defendant, took possession of the screwdriver, and a tie rod pry bar which defendant removed from inside his shirt. These articles were turned over to the marshall. He later delivered them to Don L. Foster, Sheriff of Adair County.

When Curd inquired as to defendant's purpose in carrying the screwdriver, the latter stated he was going to Des Moines with a Mike Reynolds to see about a job and they were carrying tools to fix the car in event of a breakdown.

When Marshall Carrick was about to leave the station, in order to complete his second round of inspection, defendant said one door would be found open, he had broken it.

At approximately 3:00 A.M., patrolman Curd and Herrick located the Chevrolet in a driveway in the easterly part of Anita. Mike Chafa, the driver, was taken into custody. About the same time these patrolmen received a call for help from fellow officer Smith, who reported he was then engaged in the pursuit of some people suspected of having committed a burglary in Casey, and that they were shooting at him. The Chevrolet was left where found because of the emergency call from Smith.

Later, in accord with orders received from the Anita night marshall, Arlo E. Christensen, former Mayor of that town, went to where the Chevrolet was parked. He saw nothing in the front seat of the parked vehicle, but did observe some cigarette boxes on the back seat covered by a blanket, and a Wolverine Shoe box on the rear floor. The car, being driven by him into Anita, was there parked and locked near the Christensen garage, in accord with instructions given by Patrolman Smith.

Lester Petersen, Guthrie County Sheriff testified, the morning of December 19, 1966, Max Whetstone, owner of a grocery store in Casey, reported a break-in of his establishment. This officer immediately commenced an investigation. The screwdriver and pry bar referred to above were turned over to him by Sheriff Foster. Petersen made plaster prints of pry marks on the store door, and took pictures of the doorway, some portraying the pry bar found on defendant being held in the door markings. He stated the bar fit exactly into those marks.

Subsequently, a search warrant having been obtained, the then locked Chevrolet was searched. In the rear seat were found, and Sheriff Petersen took possession of, 139 cartons of cigarettes; a cash register slip from the Whetstone store dated December 17, 1966, showing a sale to Elise Knox; a Coal National A & P cardboard box; a pair of men's khaki pants; a cardboard box with the name Ed Wilepli written on it; black leather gloves; light brown leather gloves; and a box of Kleenex tissue. Also discovered in the Chevrolet glove compartment were defendant's billfold, identification papers and keys which, pursuant to this request, were turned over to him for which he gave a receipt.

Max Whetstone, owner of the subject store, identified the Coal National A & P box, the sales slip to Elise Knox, and the box with Ed Wilepli's name on it. He stated they were in his place of business prior to the break-in. This witness also testified to the effect a quantity of cigarettes had been taken, but could not identify those found in the Chevrolet or say with any certainty they were removed from his store. Whestone was present during search of the automobile.

A special agent for the Iowa Bureau of Criminal Investigation, Dennis Ehlert, described pry marks on the store door, said he was present when the car was searched, and prepared an inventory of items seized. He also stated that among the things found but not included in the search warrant, therefore not listed on the inventory, was the billfold belonging to Jack McClelland, Jr. Similar testimony was presented by several other state agents, and they in addition testified to the effect the photographs taken fairly portrayed the things or conditions shown.

At close of the state's evidence defendant moved for a directed verdict which was overruled. He offered no testimony.

These five alleged errors are relied on for reversal: (1) insufficiency of evidence to support the verdict; (2) absence of identification of articles taken from the store; (3) insufficiency of the evidence to connect the defendant with crime; (4) trial court's failure to instruct jury regarding purpose of certain exhibits and meaning of the terms 'recently stolen' and 'possession'; (5) overruling defendant's motions for new trial and, in the alternative, to set aside the verdict.

In seeming conflict with court rule 18 and rule 344(a)(4) (Third), Rules of Civil Procedure, only the last error assigned by defendant is followed by any brief and argument which, in lengthy omnibus form, is ostensibly presented in support of all errors asserted. But even there we find no brief point or authority with regard to the first two errors asserted. However, in view of the fact this is a criminal case we shall, as best possible, construe the argument presented in light of the record even though that task has been made unnecessarily burdensome. See section 793.18, Code, 1966; State v. Fiedler, Iowa, 152 N.W.2d 236, 239; and State v. Strum, 184 Iowa 1165, 1167, 169 N.W. 373.

I. On an appeal by defendant based upon claimed insufficiency of evidence to support a conviction, we view the evidence in that light most favorable to the state. It is the function of the jury, not ours, to decide disputed questions of fact, including permissible inferences to be drawn therefrom, and its finding is binding upon us unless without substantial support in the record or clearly against the weight of the evidence. State v. Anderson, Iowa, 159 N.W.2d 809, 812; State v. Wesson, Iowa, 149 N.W.2d 190, 192; and State v. Daves, 259 Iowa 584, 585, 144 N.W.2d 879, 880.

II. The first challenge here asserted by defendant is, trial court erred in overruling his motion for a directed verdict by reason of claimed insufficiency of the evidence. See in this regard State v. Cordaro, 206 Iowa 347, 349, 218 N.W. 477, and State v. Strum, supra, loc. cit., 184 Iowa 1177, 169 N.W. 373.

It is, of course, understood an accused is presumed to be innocent when placed on trial, and the state must establish, with the required degree of proof, all facts essential to constitute the crime charged. Until that is done the aforesaid presumption of innocence stands between defendant and a conviction. See State v. Wimbush, Iowa, 150 N.W.2d 653, 654, and State v. Stodola, 257 Iowa 863, 865, 134 N.W.2d 920.

However, a question for the trier of the fact may be generated by circumstantial evidence. State v. Jones, 259 Iowa 375, 378, 144 N.W.2d 120.

Admittedly, the quality of evidence necessary to convict, either circumstantial or direct, must be sufficient to raise a fair inference of guilt. It must generate something more than suspicion, speculation or conjecture. State v. Daves, 259 Iowa 584, 586, 144 N.W.2d 879, and State v. Jones, supra.

On the other hand circumstantial evidence may be equal in value to, and sometimes more reliable than, direct evidence. State v. Manly, 211 Iowa 1043, 1050, 233 N.W. 110. See also 30 Am.Jur.2d, Evidence, sections 1125--1126, pages 292--297.

And, as stated in State v. Horrell, Iowa, 151 N.W.2d 526, 529, quoting State v. Miskell, 247 Iowa 678, 686, 73 N.W.2d 36: '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.' (Emphasis supplied)

III. Defendant argues, inter alia, trial court erred in permitting certain photographs and attendant testimony to be introduced in evidence.

At the outset it should be noted an examination of the record discloses the screwdriver found on defendant's person and the pry bar later produced by him were admitted in evidence without objection. Resultantly defendant has no standing to now challenge admissibility of these exhibits. See State v. Brown, Iowa, 155 N.W.2d 416, 419, and State v. Torrence, 257 Iowa 182, 192--193, 131 N.W.2d 808. With regard to the foregoing see also Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.

Be that as it may, instruments found in possession of an accused, although not identified as those actually used in...