State v. Philpott
| Decision Date | 16 February 1937 |
| Docket Number | 43477. |
| Citation | 271 N.W. 617,222 Iowa 1334 |
| Parties | STATE v. PHILPOTT. |
| Court | Iowa Supreme Court |
Appeal from District Court, Taylor County; George A. Johnston Judge.
From a conviction of the crime of larceny, the defendant appeals.
Affirmed.
Flick & Lucas, of Bedford, and Wisdom & Kirketeg, of Bedford, for appellant.
Edward L. O'Connor, Atty. Gen., and Walter F. Maley, Asst. Atty Gen., for the State.
In the year 1935, the defendant was president of the Grove Township School District, consisting of nine schools, and a director of School District No. 7. W. P. Becherer was secretary of the Grove Township School District. At a meeting of the school board of this district on July 1, 1935, the defendant was authorized by the board to order coal for the district. Pursuant to this authority, the defendant purchased coal from the John Anderson Coal Company at Sharpsburg, Iowa, for $7.20 per ton through its manager, W. R. Grazier. Newton Aldredge and Earl Marshall were employees of the coal company and hauled all of the coal received by the company under the order from Philpott. The coal company delivered all but the last three loads of coal from this carload to the several schoolhouses and the last three loads were delivered to the defendant's home. The defendant claims that the three loads of coal delivered to him were purchased by him from the coal company and paid for.
On November 14, 1935, the following indictment was returned against the defendant:
" The Grand Jurors of the County of Taylor in the name and by the authority of the State of Iowa accuse Ed Philpott of the crime of larceny and charge that the said Ed Philpott on or about the 21st day of September, 1935, in the County and State aforesaid did wilfully, unlawfully and feloniously steal, take and carry away the property of another, to-wit: some coal to the value of over $20.00, belonging to the Grove Township School District, contrary to the Statutes in such cases made and provided and against the peace and dignity of the State of Iowa."
The jury returned a verdict of guilty and fixed the value of the property at $54.07. Judgment was entered on the verdict. The defendant filed motions for a directed verdict, in arrest of judgment, motion for new trial, and exceptions to the instructions. All motions and exceptions to the instructions were overruled. The defendant appeals.
The defendant urges that the court committed prejudicial and reversible error in permitting the State's witness Becherer to testify on redirect examination to hearsay statements made by the truck driver, Newton Aldredge. The court sustained the first objection made by defendant to a question calling for hearsay testimony. While the court overruled a motion to strike other testimony of this witness as hearsay, the question called for and the answer gave the same information that the defendant obtained from the witness on cross-examination, and therefore, assuming the testimony was objectionable as hearsay, the defendant is not in a position to complain of its admission.
The defendant on cross-examination of this witness had brought out that Becherer first learned that the defendant was getting coal from one of the truck drivers, Aldredge, who told him about it at his house. On redirect examination, the witness was interrogated as follows: Objected to as calling for the opinion and conclusion of the witness. Objection overruled.
While the objection should have been sustained, the admission of the evidence was not so prejudicial as to constitute reversible error, especially in view of the cross-examination.
On redirect examination of the State's witness Aldredge, he was asked this question: " Q. State whether or not there was room in these eight coal houses to hold the coal that was taken to Mr. Philpott's place." Defendant's objection was overruled. No answer was given to this question and furthermore it called for evidence that was material to plaintiff's theory of the case. There is no merit to defendant's assignment of error based on the overruling of this objection.
The defendant urges that the court committed prejudicial and reversible error in overruling the defendant's motion for a directed verdict at the close of the State's evidence. The gravamen of this assignment of error is that the evidence fails to show that the defendant stole coal from Grove Township because the ownership of the coal by the township at the time it was delivered to defendant by the Anderson Lumber Company was not established.
We will set out some of the State's evidence material to this issue.
On July 1, 1935, at a meeting of the Grove Township School Board, defendant was authorized to purchase coal for the district. Pursuant to this authority, the defendant went to W. R. Grazier, manager of the John Anderson Lumber Yard at Sharpsburg, and told him the school district would need about 56 tons for the eight schools in the district, and they agreed on a price of $7.20 per ton. On July 27, 1935, the company sold coal to the Grove Township School Board under the following contract:
" EX. 6 Sharpsburg, Iowa 7-27, 1935
John Anderson Lumber & Coal
Lumber, Builders Hardware, Mill Work, Coal, Roofing, Brick
Grove Township School Boards.
Contract for School Coal Delivered to School houses at $7.20 per ton plus tax. Franklin County, Ill., Lump Coal.
John Anderson Lbr. Yard."
which contract was delivered to defendant Philpott. The company was to pay the freight and deliver the coal to the schoolhouses for the price of $7.20 per ton.
At the same time, Mr. Grazier agreed to furnish coal to the defendant and any one else that wanted it at the same price delivered.
The coal arrived in Sharpsburg on the night of September 18th and delivery to the schoolhouses began on the 19th. Grazier testified that all this coal was sold to the Grove Township School District. About noon on Saturday, the 21st, Grazier told Philpott the schoolhouses were full. At this time there were about three truck loads remaining in the car. Defendant then told Grazier to send the rest of the coal out to his house. After two loads were delivered to the defendant's home, and the third load had been weighed at the company's yard, the defendant came to Mr. Grazier's office ahead of the truckers and said to Grazier: " I am not going to pay you for this coal, but I will give you a check in front of the boys to make them think I am paying for it." When the truckers came into the office, the defendant said in their presence, " figure that up and I will pay you for it." Grazier then figured the price of the three loads, told Philpott the amount due, and Philpott wrote out a check, and as soon as the truckers left the defendant stated, Grazier then stated: " I told him that he knew that the Grove Township wasn't going to pay for the coal and that this would get him and me in trouble." The defendant then stated to Grazier: " don't you say a damn word about this." Grazier testified he would not have delivered the coal to Philpott if he had known he did not intend to pay for it.
There was evidence that the coal was to be sold on mine weights and the mine weights of this car load of coal was 107,600 pounds or 53 tons, 1,600 pounds. During the afternoon of the 21st, Grazier made out a bill for all the coal to the school district, identified in the record as Exhibit No. 3, which was approved by the defendant as president of the board, although he had received 6 or 7 tons of the coal. Exhibit No. 3 reads as follows:
Grazier then went to the secretary of the board, Mr. Becherer, with the approved bill, who issued a warrant payable to the company for the full amount due for this car load of 53 tons, 1,600 pounds of coal. The defendant signed this warrant as president.
For some reason, the defendant had all the original scale tickets made out as the coal was weighed and hauled to the schoolhouses. The day after the coal was delivered to the defendant, Grazier went to the defendant's home and told him that Mr. Becherer wanted the scale tickets, and further said: The defendant replied that Grazier need not worry as it wasn't going to hurt him any and that he (defendant) had too many friends on the school board and in Grove Township. Grazier then tried to persuade defendant to reimburse the school board and he refused to do it.
On November 14th, Grazier went to defendant's home and again told him he must have the weights for the coal as he was subpoenaed to the grand jury. The defendant then said to Grazier: " You go down there (to the grand jury) and tell them you hauled three loads of coal to the Hunter School House, the Wyant School House and Number #7 school house and they can't prove any-thing on me." From the original scale weights they then made out tickets for the coal delivered to the schoolhouses and for three loads that were not delivered to the above-named three schoolhouses. Defendant told Grazier to date the tickets for the three loads...
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