State v. Prentice, 33488.
| Citation | 183 N.W. 411,192 Iowa 207 |
| Decision Date | 21 June 1921 |
| Docket Number | No. 33488.,33488. |
| Parties | STATE v. PRENTICE. |
| Court | United States State Supreme Court of Iowa |
OPINION TEXT STARTS HERE
Appeal from District Court, Lucas County; C. W. Vermilion, Judge.
Defendant was accused and convicted of the crime of larceny for the theft of an automobile. He appeals. Affirmed.O. A. Stafford, of Chariton, M. L. Temple, of Osceola, and W. W. Bulman, of Chariton, for appellant.
Ben J. Gibson, Atty. Gen., B. J. Flick, Asst. Atty. Gen., and C. F. Wennerstrum, Co. Atty., of Chariton, for the State.
The trial in the district court was at the October, 1919, term. The errors relied upon for a reversal are that the evidence is not sufficient to sustain the verdict of the jury, and particularly it is claimed that the corpus delicti has not been established, in that nonconsent of the owner is not shown; ruling out evidence offered by defendant, and admitting evidence as to the use of drugs by one of defendant's witnesses.
[1] 1. If the evidence of the defendant is true, and a verity, and the evidence offered by the state in contradiction is ignored, then the verdict should have been for the defendant. The case is argued as though this was the situation, and as though this court was the jury, and the triers of fact questions. The defendant is corroborated at different points by his wife, mother, stepfather, whose name is Dr. Brittell, and others. They are contradicted by evidence for the state, and by the circumstances. The car taken was a Buick Model D-55, and was the property of Tom Hooper, of Chariton, Iowa. It was taken from the streets of Chariton in the evening of September 8, 1919, and according to the testimony of the state, it must have been taken between the hours of about 8:50 and 10 or 10:30 o'clock. If it was taken by the defendant, then, according to his and other testimony, it must have been taken between about 9:15 and 9:30 o'clock. The defendant and his wife and mother were at the theater. He says he got there about 8:15 or 8:30 o'clock, and left the theater about 9:15, because his wife was sick, and needed air. Another witness says that he saw defendant come in about 9 o'clock, and that he sat there about 15 minutes, and he and his wife went out. The identity of the car taken, and that it was the one in the possession of the defendant a few minutes after the taking, is abundantly established. It is identified by the Miley garage people and others, where defendant had it to secure gasoline shortly after the taking. Defendant, as a witness, admits that he was at this garage at about the time stated, and purchased gasoline for the car, and that he was driving it. He says, however, that if it was Hooper's car he did not know it. As said, the identity of the car in possession of defendant is shown. We shall not go into the details of the evidence on the question of identification. Defendant's explanation of such possession is not entirely reasonable and convincing. It was such as to make it a question for the jury whether he had properly explained his possession. The evidence in regard to his explanation will be referred to later.
On the evening in question Mr. Hooper, the owner of the car, had driven it and parked it near the Lincoln theater. He entered the theater about 8:50 p. m. After attending the performance, he returned to the place where he had parked the car, at about 10:15 p. m. He says:
“I discovered the car was gone; I never have seen the car since; I endeavored to locate the car; have never gained any information as to where the car is; I made one trip to Des Moines and two to Centerville; I got a tip that the car might be there some three weeks or a month after; went to Centerville at the suggestion of defendant's attorney; went around to each of the garages there; its fair market value was $1,250.”
He described the car, the kind and condition of the tires; that the car was newly painted, clean, and in good shape, and so on. A car with similar tires was traced about six miles southwest from Chariton, but the witness testifying to this says that he could not say that it was the Hooper car. There is evidence that there were two or three other cars of this same make and model in Chariton and vicinity. The defendant lived in Des Moines, where he had been night clerk for a short time at the Lloyd hotel. He formerly lived at Chariton, where his mother lives. He had been subpœnaed as a witness to appear at 9 o'clock a. m. of the 8th, but the case had been dismissed. He intended to return to Des Moines on the afternoon train, but missed the train. He and his wife drove to Des Moines that night in a car, which the state claims is the Hooper car. Defendant says he was with two men. There is evidence that a few days previously defendant had attempted to get a man by the name of Hoover, living in Des Moines, to assist him in stealing an automobile, saying that a Buick car would be the easiest. Hoover is corroborated to some extent in this by his wife. Defendant testifies that when he and the other three returned from Chariton to Des Moines, and when defendant and his wife left the car at 6th and Walnut, at about 1:30 o'clock in the morning, he saw Hoover there. This is denied by Hoover, who testifies that he saw defendant the morning of the 9th, and that defendant said to him that, if any one asked if he (Hoover) had seen defendant, to tell them “Yes,” about 1:30 the night before.
Defendant claims that the two strange men who let him and his wife out in Des Moines, turned north, in a direction that would take them out of Des Moines, to the north. Defendant says that, after he and his wife got out of the car, they had to wait until 2 o'clock for an owl car, and they looked in the shop windows until time for the car; lived about 12 or 16 blocks from the point they got out. Defendant is 22 years of age. He was married in September, 1918, divorced, and married again in July, 1919. After testifying to some of the matters before referred to, he testifies in regard to his different residences and occupations; bell boy in Chicago, and another place in Illinois; his coming from Kansas, being in San Francisco, the Philippines; his being called in the war service, but did not enter; was in the draft list in Chicago; had resided there; was there about a week and a half, or three weeks; and so on. Later he says he was in the service; went in as a cavalryman, but was transferred to the hospital corps on account of his health; was in there two years.
He says he met the two men he claims to have ridden from Chariton to Des Moines with at the State Fair in Des Moines; that they gave their names as Edwards and Connor; doesn't know Connor's first name; heard them mention St. Paul, but they didn't say they lived there; saw them in the pool hall playing pool for money, at the back table--play greenhorns for money; defendant says he played with them twice; never met them outside the pool hall; when he met them, was with them for a short time; perhaps they were around Des Moines just a few weeks during the State Fair of 1919; he met these two men in Chariton about 7 o'clock in the evening of September 8th; they said they had been to a soldiers' reunion, but did not say where; they asked defendant what he was doing in Chariton, and when he was going back; they asked him if he would care to drive back with them; that his wife could go with them; defendant arranged to meet them about 9:30 o'clock; they inquired about a family of Taylors; that they knew him, and he had been to the State Fair; defendant told them he knew some Taylors, but they were not the ones; defendant and his wife arranged to go with them. They say it was talked over in the presence of defendant's mother, at her home. He says that, after leaving the theater about 9:15, he and his wife were walking around to get the air, and another reason was they thought they might possibly meet those two men that early. The second time around the square they met the men, who asked if they were ready. He introduced his wife to them, and she said she was ready to go, and he testifies they got in the car; it was probably a quarter to 10; he and his wife got in the back seat, the other two in the front seat; it was a Buick car; there were the usual number of people on the street, but he does not recollect of seeing any one he knew; the two men got mixed up in directions, and with the railroad track, and defendant explained to them that the track there was on an abandoned spur; they talked of needing gas, that they had forgotten to get it. The evidence of Hooper is that there was but two or three gallons of gasoline in the car when he left it; defendant directed the men to a garage, he says, but they were not selling gasoline there, and he directed them to another.
The men then said they wanted to send a message and get something to eat, and asked defendant if he could get the gas while they were doing that; he showed them where the depot was, and they drove there, and the two men got out; defendant and his wife then got in the front seat; did not know anybody around; there is a lunch counter at the depot, and both the telephone and telegraph station. They told defendant to get 10 gallons of gasoline, and handed his wife a $10 bill; the two men got out at the depot, and defendant drove the car to Mileys, and got the gasoline, paying $3 therefor; was at the garage about 15 minutes; saw nothing suspicious about the actions of the men; in going to Mileys he thought it sounded like a tire was down, and he inspected it and found it all right; he was well acquainted with the garage people, and he is well known in Chariton; noticed one of the tires had a torn place in it, not worn; it was standing up all right, very little of the rubber torn; it was back in place. Hooper had testified that there was a torn place in one of the tires on his car. There were men around there, but he paid no attention to who they were, except the man who waited on him, whom he...
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