State v. Register

• Decision Date: 09 January 1962
• Docket Number: No. 50381,50381
• Citation: 112 N.W.2d 648,253 Iowa 495
• Parties: STATE of Iowa, Appellee, v. Keith REGISTER, Appellant.
• Court: Iowa Supreme Court

Page 648

112 N.W.2d 648

253 Iowa 495

STATE of Iowa, Appellee, v. Keith REGISTER, Appellant.

No. 50381

Supreme Court of Iowa.

Jan. 9, 1962.

Floyd V. Nichols, Albert Lea, Minn., and Lewis H. Jordan, Winterset, for appellant.

Evan L. Hultman, Atty. Gen., and Emery L. Goodenberger, County Atty. of Madison County, for appellee.

THORNTON, Justice.

Defendant was convicted of larceny of a 1924 Model T Ford touring car top complete with bows and sockets having a value in excess of $20. Section 709.1, Code of Iowa, 1958., I.C.A. He appeals, urging various grounds for reversal. As a reversal is required we will discuss only such matters as are likely to arise on a new trial, sufficiency of the evidence, instructions, and a communication between the trial court and the jury foreman.

I. The evidence shows defendant purchased a 1923 Model T Ford touring car for $85 from Eldon Grulke at an auction sale held at Grulke's home in Winterset on June 4, 1960. On June 9, 1960, defendant, accompanied by Mr. Daughenbaugh and Mr. Kincaid, went to Winterset with a truck and trailer to haul the 1923 Model T to his home in Alden, Minnesota. Mr. Kincaid testified for the state that they loaded the 1923 Model T and drove to a filling station to pay for the Model T and inquire about an antique bathtub they were to haul for another; they returned to the Grulke place to locate and load the bathtub; after the bathtub had been loaded defendant said, "Well, I might as well get my top."; defendant then walked onto the lot and while Mr. Daughenbaugh and he were securing the car previously loaded, defendant came back carrying the top and put it in the back of the truck. On the way home Mr. Kincaid testified there was a conversation between defendant and him wherein he was led to believe the top was bought and paid for. He also testified defendant offered him money to change his story.

Defendant testified that at the time they first arrived to pick up the Model T the top was sitting in between the seats of the Model T he purchased. That Mr. Kincaid asked him about the top and he told him it wasn't in the car when he purchased it. Mr. Kincaid said, "Well, it don't look like it is any good. Do you need it? Have you got any use for it? I'll throw it in." and Mr. Kincaid threw it in the truck. That this happened on their first trip to the Grulke home that day and not when they returned to pick up the bathtub. He put the top in a shed when he got home and he has made no use of it and had no use for it. He produced the top at the trial. Mr. Daughenbaugh corroborated defendant's testimony.

Mr. Kincaid was both impeached and accredited by reputation evidence for honesty, truth, and veracity.

Mr. Grulke, the owner of the top, testified that he left his home, the scene of the auction sale, June 9th about 10:00 a.m. and that at that time the top in question was on a 1924 Model T owned by him, before he left he let the top down and folded it up and took a canvas and covered and wired it down so the wind wouldn't blow off the canvas. On his return June 13th the top was missing. He testified to the condition of the top and that its value was around $125.

A deputy sheriff testified he overheard defendant being questioned in the sheriff's office. That defendant at first stated he did not take the top but later changed his story and stated he did, it was in the back seat when he came for his car.

If Mr. Kincaid's story is believed it is substantial evidence beyond a reasonable doubt of larceny of the top, bows and sockets. The testimony is simply, he saw defendant walk onto the Grulke lot and come back with a top. Mr. Grulke's testimony shows he, Grulke, and not defendant, owned the top and there was no excuse for defendant thinking he had a right to take it. There is nothing in the testimony to make this impossible. This evidence, together with the contradictions shown by defendant's evidence, presents a jury question. The act itself is evidence of criminal intent. State v. Sauerbry, 233 Iowa 1076, 10 N.W.2d 544. Defendant does not actually make a claim of purchasing the top or of ownership. His claim is, he thought it was something Grulke wanted to get rid of and that he (defendant) did not, but Kincaid did put the top in the truck. As stated in State v. Poffenbarger, 247 Iowa 552, 555, 74 N.W.2d 585, 587, "This is simply a case of conflicting evidence and the verdict based thereon is binding upon us."

II. Defendant complains most vigorously that on the question of value the verdict is not based on competent evidence and is against the weight of the evidence. From the evidence there is no question but all witnesses on value considered the top as being an antique top for an antique car. Mr. Grulke, the owner of the top, testified to the type of top and its condition, to the various antique car clubs to which he belongs and the publications of these clubs to which he subscribed, these publications list for sale antique cars and car parts. Also that his sideline is collecting antique cars and he has been so engaged for ten years, and that he was familiar with the general line of antique car parts and prices. He testified, over objection that no proper foundation was laid, the reasonable market value would be around $125, and the value of the entire 1924 Model T of which the top was a part was $500. On cross-examination he testified he wouldn't pay the prices shown in the publications, they were highly inflated, and that his estimate of value was based on his personal opinion and not on any sales he had observed. Two other value witnesses testified for the state. Each had been interested in antique cars as a hobby for eight or nine years. They subscribed to publications of antique car clubs and were familiar with the prices shown in these publications. From the testimony of each it is clear there is no market for antique parts such as there is for new parts on a modern car. They showed a familiarity with the Grulke top and its condition. Each had attended sales of antique cars in Iowa and other states. Their testimony as to value ranged from $40 to $80. One testified if he needed it he would pay $75 to $80, if he were buying as a speculation for resale he would pay $40 to $45. The defendant and two others testified for the defense that the top was in poor condition and its value not more than $5. These men had been interested in antique cars and car parts for from five to ten years and were familiar with the same publications as the state's witnesses and they had attended sales of antique parts and bought and sold antique car tops. Their description of the condition of the top is that it is in bad shape and doesn't have enough original material to give it antique value. The top was placed in evidence and certified as an exhibit to this court. From the oral evidence and appearance of the top we cannot say as a matter of law it had no value nor that the value did not exceed $20, but the jury could have.

The witnesses for the state were competent. Mr. Grulke was the owner. Ruth v. O'Neill, 245 Iowa 1158, 1175, 66 N.W.2d 44, and citations; and State v. Hathaway, 100 Iowa 225, 226, 69 N.W. 449. Mr. Grulke and the other state's witnesses showed a general knowledge of antique cars and parts such as the top and prices listed for such in the trade publications as well as the sales of antique cars in Iowa and the Midwest, but not of tops. Their testimony showed reasonable experience in the field and knowledge of the particular item. There is no market value in the usual sense. Value would depend on demand and availability and condition of the particular item. State v. Strum, 184 Iowa 1165, 1167-1170, 169 N.W. 373; and State v. Lewis, 144 Iowa 483, 123 N.W. 168.

III. The jury returned a verdict wherein they found the value to be $23. Is this verdict as to value clearly against the weight of the evidence? In dollars the jury approximately split the difference between the state's lowest value of $40 and defendant's highest value of $5. Defendant's claim is here based largely on the difference in qualifications of the respective witnesses and the condition of the top as it appeared and as described by the witnesses. The truth of the statements of each witness as to his qualifications is a jury question. The witnesses were describing a top for a 1924 car, it would hardly be a new top, the description could vary from witness to witness. The state's witnesses described the top as being in better condition than did defense witnesses. That it was old cannot be denied. But there is nothing here which can be singled out which convinces us the verdict as to value was against the clear weight of the evidence as in the authorities cited by defendant: State v. French, 240 Iowa 1, 35 N.W.2d 1; State v. Thompson, 239 Iowa 907, 33 N.W.2d 13, (see dissenting opinion); and State v. McKenzie, 204 Iowa 833, 216 N.W. 29. The conflict of testimony here and our view of it corresponds with the case of State v. Carlson, 224 Iowa 1262, 276 N.W. 770, cited by defendant. We cannot sustain defendant's position.

IV. Defendant complains of Instructions 8 and 10 because in No. 8 the court stated, " * * *, if you find that the defendant took said property * * *, knowing that it was not his own * * *, and appropriated said property to his own use, such taking is a felonious taking within the meaning of the law, * * *." (Emphasis added.) And in No. 10 the court instructed, " * * * An act is feloniously done when it is unlawfully committed, and when it is committed under such circumstances as to render it punishable as a felony." His complaint is these instructions confused and misled the jury and preclude a finding defendant was guilty of petit larceny. He urges instructions are to be read as a whole and cites State v. Debner, 205 Iowa 25, 30, 215 N.W. 721, 724. We have carefully considered all of the other instructions and do not find the words, "feloniously" or "felony" used. Nor are ...