State v. Proost

• Decision Date: 05 August 1938
• Docket Number: 44121.
• Parties: STATE v. PROOST.[a1]
• Court: Iowa Supreme Court

281 N.W. 167

225 Iowa 628

STATE v. PROOST.^[a1]

No. 44121.

Supreme Court of Iowa.

August 5, 1938

Appeal from District Court, Clinton County; D. V. Jackson, Judge.

Defendant was charged with the crime of breaking and entering. Following trial he was convicted and sentenced, and appeals. Opinion states the facts.

Reversed.

P. B Holleran and A. G. Lollich, both of Clinton, for appellant.

John H Mitchell, Atty. Gen., Leon P. Molloy, Co. Atty., of Clinton Raymond Lynch, Asst. Co. Atty., of Dewitt, and Buell McCash Sp. Asst. Atty. Gen., for the State.

MILLER, Justice.

Main Avenue in the City of Clinton runs east and west, and is intersected by Cleveland Street running north and south. An extra wide alley, designated as Buell Avenue, is the first east and west thoroughfare south of Main Avenue, which alley likewise intersects Cleveland Street. On September 11th and 12th, 1936, one Clem Holdgrafer operated a filling station at the southeast corner of Main Avenue and Cleveland Street. The building faced north on Main Avenue, having a canopy in front under which the gas pumps were located. The front part of the building was used as the office, immediately south of which, separated only by a glass partition, was the grease rack and storage room. Double doors in the west wall of the storage room opened on Cleveland Street, and a door in the south wall of the storage room opened into a large back room occupied by Frank Proost, father of the defendant, which room extended to Buell Avenue. Immediately east of the Holdgrafer filling station were situated the following buildings in order: The Horton Garage, a restaurant referred to as the " Avon", and the home of appellant. In the wall between the Horton Garage and the office of the filling station, was located a window about 2 1/2 feet square, which raised up and down. On September 11, 1936, a drizzling rain fell on and off all night. At about 9 o'clock that evening Holdgrafer, in the presence of his daughter Anna, and the defendant, closed his place of business, locked all the doors, including the double doors leading from the storage room to Cleveland Street; and observed that the window between his office and the Horton Garage was closed. He took some seventy-five or eighty dollars out of the cash register and gave it to his daughter, who in turn placed the same in a metal cabinet or safe in the front of the office; resulting in the cabinet containing approximately $290. The daughter then closed the cabinet or safe, with the assistance of defendant. Holdgrafer was awakened by the defendant at his home at about 3:20 o'clock A. M. on September 12th, who rapped vigorously on the door and stated, " Clem, your place has been robbed; your safe is gone. Have you a cigarette?" Holdgrafer dressed and went to the filling station and found the double doors to the west standing open and the metal cabinet or safe gone.

On April 15, 1937, an indictment was returned against the defendant and one Marvin Hendershott, charging them with the crime of breaking and entering the said filling station at said time. To this indictment Marvin Hendershott entered his plea of guilty and was thereupon sentenced to a term in the State Reformatory. The defendant herein entered his plea of not guilty to this indictment, was thereafter tried, convicted and sentenced, from which judgment and sentence this appeal is taken.

Marvin Hendershott was a witness on behalf of the State, and testified in substance that he met appellant at appellant's home between 6:30 and 7 o'clock P. M., September 11, 1936; that they were in each other's company from then on until about 3 o'clock A. M., September 12, 1936; that at about midnight they entered the filling station by entering the Horton Garage, opening the window in the wall between the garage and the office of the filling station, and going through the same; that they then carried the cabinet or safe from the office to the northwest corner of the grease room; that they then returned to the street, proceeding back through the window and the garage building; that they later re-entered the filling station by the same method, whereupon appellant opened the double doors leading to Cleveland Street, while the witness watched for Mr. Doran, a merchant policeman in that vicinity; that they went out of the double doors, got into appellant's automobile, drove it around, and parked in the driveway just south of the Horton Garage and just north of Buell Avenue; that it was then about 1:30 A. M. and they then saw Doran, the policeman, come around from behind a lumber company building directly across the street, and that they had a conversation with Doran concerning prowlers, or snoopers; that as soon as Doran left, they got into the car, parked it alongside the double doors on Cleveland Street, went into the building, picked up the safe or cabinet, placed it in the car and drove to a spot near what is known as Root Memorial Park, where they pushed the cabinet out into the road and backed the car around so the headlights were on it, whereupon appellant took a hammer, cracked it open and found $200; that they then drove to the Coryell gas station, had some gas placed in the car, and divided the money, each receiving $100; that they then went to the City Lunch Cafe, and remained there until about 3 o'clock in the morning, then they separated, the appellant telling the witness he was going home.

Div. I. Upon the completion of the State's case, a motion for directed verdict was made by appellant, which motion was overruled. This motion was again renewed at the close of all the testimony, and again overruled. Appellant in his first assignment of error relied upon for reversal, claims that the action of the court in overruling said motions for directed verdict was erroneous on account of the fact that the only testimony introduced connecting appellant with the crime charged was that of the accomplice Hendershott, and that his testimony was not corroborated by other evidence tending to connect appellant with the commission of the offense charged. The record establishes without dispute that Marvin Hendershott was an accomplice, and in accordance with the express provisions of Section 13901 of the Code of Iowa, the conviction cannot be sustained unless his testimony is corroborated by other evidence tending to connect appellant with the commission of the offense. The section provides as follows:

" A conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence which shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof."

It is to be observed therefrom that the corroboration required is not sufficient if it merely shows the commission of the offense, or the circumstances thereof, but to be sufficient, such corroborating testimony must tend to connect the accused with the commission of the offense.

This court has frequently been confronted with the application of this section of the code, and in State v. Christie, 193 Iowa 482, 187 N.W. 15, the following language is used (page 17):

" We have frequently had occasion to apply this section of the statute. It is not obscure or uncertain. The testimony of the accomplice must be corroborated ‘ by other evidence which shall tend to connect the defendant with the commission of the offense.’ Unless there is evidence which can fairly be said to tend to connect the defendant with the commission of the offense, outside of the testimony of an accomplice, then a conviction cannot be permitted to stand. Furthermore, the corroboration of an accomplice is not sufficient, under the statute, ‘ if it merely show the commission of the offense or the circumstances thereof.’ We have held, however, that the corroboration need not be of every material fact testified to by the accomplice. It is sufficient to meet the requirements of the statute if the accomplice is corroborated in some material fact tending to connect the defendant with the commission of the offense. State v. Cowell, 149 Iowa 460, 128 N.W. 836; State v. Dorsey, 154 Iowa 298, 134 N.W. 946; State v. Allen, 57 Iowa 431, 10 N.W. 805; State v. Hall, 97 Iowa 400, 66 N.W. 725; State v. Patten, supra [191 Iowa 639, 182 N.W. 788].

It is also true that the corroborating testimony of an accomplice need not be direct. It may be circumstantial, and, whether direct or circumstantial, if it corroborates the testimony of the accomplice in a material part and tends to connect the defendant with the offense charged, it is sufficient to meet the requirements of the statute and to carry the case to the jury. State v. Schlagel, 19 Iowa 169; State v. Miller, 65 Iowa 60, 21 N.W. 181; State v. Dietz, 67 Iowa 220, 25 N.W. 141; State v. Van Winkle, 80 Iowa 15, 45 N.W. 388; State v. Dorsey, supra; State v. Patten, supra."

In the consideration of this contention of appellant it is necessary that we ascertain whether there is any evidence either direct or circumstantial that corroborates the testimony of the accomplice Hendershott in a material part thereof, and which tends to connect appellant with the commission of the offense charged. Examination of the record reveals that witnesses other than the witness Hendershott, testified that appellant was present and assisted in closing the safe or cabinet at the time Holdgrafer closed his place of business; that appellant and Hendershott left the Avon together at 1:30 o'clock A. M.; that appellant and Hendershott were seen in the alley with appellant's automobile just behind the filling station on the drizzly night in question, at about 1:30 o'clock A. M.; and that the witness Hendershott was seen sitting...