State v. Mikesh

• Citation: 288 N.W. 606,227 Iowa 640
• Decision Date: 21 November 1939
• Docket Number: 44889.
• Parties: STATE v. MIKESH.
• Court: United States State Supreme Court of Iowa

288 N.W. 606

227 Iowa 640

STATE v. MIKESH.

No. 44889.

Supreme Court of Iowa.

November 21, 1939

Appeal from District Court, Butler County; T. A. Beardmore, Judge.

Prosecution under the provisions of section 13002 of the Code of 1935 for the crime of entering a bank with intent to rob. From a conviction and sentence defendant appeals. The facts are set out in the opinion.

Affirmed.

F. J McGreevy, of Ackley, and George Mikesh, of Protivin, for appellant.

Fred Everett, Atty. Gen., Jens Grothe, Asst. Atty. Gen., Harvey J Carter, Co. Atty., of Clarksville, W. C. Shepard, of Allison, and George R. Blake, of Shell Rock, for appellee.

HALE Justice.

The defendant was indicted for the crime of entering a bank with intent to hold up and rob, alleged to have been committed on the 20th day of December 1938. In view of the gravity of the offense and the extent of the punishment, we set out the evidence at some length.

The village of Kesley is situated in Butler county, about sixteen miles northeast of Ackley, which is on the line of Hardin county and the county north, Franklin. The county automobile license number of Hardin county is 42. In Kesley is located a branch office of the Iowa State Bank, whose main office is at Clarksville in the same county. This branch bank is on the north side of Main street, which runs east and west, on the northwest corner of the intersection of a north-and-south street. Across this north-and-south street to the east is the Uhlenhopp Grocery. To the west on the north side of Main street is a creamery, and farther to the west, about one hundred feet from the bank, is a garage. Across the street on its south side are other buildings.

On the afternoon of December 20, 1938, George De Buhr, one of the employees of the branch bank, was clerking at a sale in the country, leaving Tillie Johnson, the other employee, in charge. At about 4 o'clock the defendant, according to the testimony of Miss Johnson, who identified him, entered the bank, told her, " This is a holdup, hand over the cash," and slid a revolver through the window at the counter and told her to hurry. She then turned over to him silver and currency amounting to $53.80. After being informed that he could not get the currency in the vault immediately, he shut Miss Johnson in the vault, from which she released herself and gave the alarm. After the robber received the cash he put on some dark-colored glasses, but was at no time masked.

A witness who had seen him park his car on the north side of the street, between the bank and the garage, and then proceed toward the bank, and who identified him as the defendant, saw him about ten minutes later get into his car and drive to the west on Main street. Another witness who also identified the defendant saw him driving west on Main street at about the same time. Witnesses described the car as an old-model Buick coupe, one stating it was a 1928 model, rather shabby, bluish-green, with a canvas top. One of these witnesses also said it bore the county license number 42. Witnesses Korte and Harms, who testified that they saw the defendant in Kesley and later in the evening at Ackley, stated that defendant's car was the same one they had seen in Kesley; and another witness-Uhlenhopp, a farmer-also met the car. It was also identified by a witness, also named Uhlenhopp, as the car which passed the store where he worked in Kesley, going west, at about the time of the robbery. The car is also described by the service station operator as passing his station east of the bank, and as driven by a man with a light gray hat. The car as described by these witnesses was also seen, and described with varying degrees of accuracy, in Kesley, by others, at about the same time. Some nine other witnesses at different points on the road saw a car corresponding in general description to defendant's, proceeding west and south toward Ackley, after 4 o'clock. They unite in describing it as greenish-blue, some giving the make, and some more fully describing it. About 5 o'clock defendant was seen by two neighbors driving his car into his garage in the south part of Ackley. His family were out of town on a visit. He then went into his house, changed his clothes, and went to the home of a friend for dinner. He returned to his home about 9 o'clock; was met by officers and taken to the town hall and questioned. With the officers he returned to his home, and in answer to the sheriff's inquiry informed the officer where his revolver could be found. The sheriff found, on a shelf in a closet, a revolver and $80.63 in two purses. This revolver, according to the testimony of Miss Johnson, looked the same as the one held by the robber at the bank. Some of the currency was old-style large bills. The old bills were claimed by the defendant to have been kept as keepsakes; and all the currency was claimed to be his own.

The defendant's account of his movements during the day is that he left home at about 8:45 in the morning, went to the post office, then to an oil station where he bought some gasoline. He intended to go to a funeral, but did not. After leaving the filling station he went to a pool hall, which he left at 9:30, and drove to Aplington. He left there about 11:40 and drove to Dumont; stopped at a tavern kept by one Anthony, where he ate lunch, drank some beer, and played cards. He left Dumont about 3:50 and drove home to Ackley, put up his car, went in his house, changed his clothes, drove to his dinner engagement and remained at his friends' home until 9 o'clock, when he was arrested by the officers. He denies that he was at Kesley at any time on December 20, 1938.

That defendant was at Aplington at about the time he states is corroborated by the testimony. There is also evidence to support his statement that he was at Dumont. Several witnesses testified to defendant's presence in the tavern, but no one places the time of his departure as late as does defendant. One Freeze states defendant left at 3:30. Reed, another witness, states that when the witness left, shortly after 3 o'clock, defendant was still in the tavern. Kothenbrinck, a witness, testifies that when the witness left at 3:30 defendant was still there.

Defendant's wife and mother testified as to the ownership of the money found in the house, and one witness testified as to a car similar to defendant's owned by one Faint, but on rebuttal Faint described his car as a Pontiac coupe, green, with black top.

The above comprises the substance of the testimony introduced.

I.

Defendant contends that the court erred in admitting the written statement signed by defendant on December 21, 1938, at night. This differs little from his testimony on the witness stand except as to the time of arriving at and leaving Dumont and arriving at his home. The time is, of course, important. This statement was made about 10 o'clock at night. No threats were made and no promises given, nor is it so claimed. The defendant was in custody, and there is no evidence that he was informed as to the use which would be made of this statement. So far as the evidence indicates, it was voluntary, and under the circumstances the burden was upon the defendant to show it incompetent. State v. Storms, 113 Iowa 385, 85 N.W. 610, 86 Am.St.Rep. 380; State v....