State v. Rozeboom
| Decision Date | 09 February 1910 |
| Parties | THE STATE OF IOWA, Appellee, v. ANDREW D. ROZEBOOM, Appellant |
| Court | Iowa Supreme Court |
Appeal from O'Brien District Court.--HON. WM. HUTCHINSON, Judge.
THE defendant was convicted of larceny, and appeals. The material facts are stated in the opinion.
Affirmed.
J. T Conn and Herrick & Herrick, for appellant.
H. W Byers, Attorney-General, and C. W. Lyon, Assistant Attorney-General, for the State.
Rock Valley and Hartley are stations on the line of the Chicago, Milwaukee & St. Paul Railway. At the time in question it was the custom of the company on certain specified days to run a refrigerator car from Rock Valley east through Hartley for the transportation of shipments of butter and eggs to the Chicago, New York, and other Eastern markets. Among the shippers making use of this convenience were C. H. Day, doing business at Rock Valley, and Andrew D. Rozeboom, the defendant herein, doing business at Hartley. Each shipped butter packed in wooden tubs of the same general size, shape, and appearance. The direction or address of the consignees of such shipments was placed upon the tubs by the use of stencil plates or stamps, or tags, the identity of the shipper being indicated by a number the significance of which was known to the consignees. The evidence in the case was sufficient to justify the jury in finding that on or about March 25, 1907, Day made a shipment from Rock Valley, in a refrigerator car, of seventy-seven tubs of butter, forty-six of which were consigned to the address of Gude Bros., New York, such address being placed upon the cover of each by the use of a stencil plate together with the shipper's number. This shipment was deposited in one end of the car, leaving the floor between the side doors clear and unobstructed. Thus partially loaded, the car was hauled to Hartley, at which place it arrived during the night and was placed upon a side track at a convenient place for receiving shipments in the morning. At an early hour of the following morning the defendant loaded several tubs of butter from his creamery and hauled them to the car. The station agent was not there, but, following what he claims to have been the custom, defendant proceeded to open the car and transferred a part of the tubs from his wagon to the car floor between the doors. It is his contention that he brought from the creamery to the car six tubs, and in this he is corroborated by a special agent of the railroad company who appeared about this time and swears that he saw the transaction. It is the theory and claim of the state that defendant having placed some of his tubs on the car floor, took other tubs which were a part of Day's shipment, mingled them with his own, and having scraped from the covers the address of Gude Bros., New York, substituted therefor the address of his own correspondents, Merrill & Eldridge, Chicago, Ill. This theory of the defendant's offense has direct support in the testimony of the special agent who claims to have surprised him in the act, and it has corroboration in the testimony of two or three other persons who arrived on the scene immediately afterwards, and swear that pieces of glass and shavings or scrapings of wood were found on the floor, and that several tub covers showed signs of erasures. The defendant's stamp and printing pad for stamping the address of his consignees were also admittedly found in the car or in the wagon just outside of the car door. He denies that he interfered in any manner with any of the tubs except those brought to the car by himself, and says that he was bent over one of his own tubs fastening a cover, which he discovered to be loose or insecure, when he was suddenly and violently assaulted by the railway company's special agent and accused of stealing butter. As we understand the record there were two tubs from Day's shipment on which the state asserts the proper address had been obliterated and the address of defendant's consignees substituted, while other of said tubs had been moved over from their proper place in the car to the place between the doors. The indictment charges defendant with larceny of two tubs of butter of an aggregate value of more than $ 20, and upon the showing made the jury returned a verdict of guilty. There was other evidence than we have mentioned, but it is circumstantial only, and none of it does more than furnish some degree of corroboration for the respective theories of the prosecution and defense. Whether the defendant did thus feloniously convert or attempt to convert any portion of Day's shipment to his own use was therefore a fair question for the jury, and its verdict thereon can not be set aside unless the record discloses reversible error in the rulings of the court or in its charge to the jury.
I. The court admitted in evidence a carbon copy of an alleged shipping bill sent, or claimed to have been sent, by the railway company with the butter received by it from defendant on the morning of the alleged larceny and forwarded to the consignees. It appears to have been first written describing seven tubs but gives evidence of a change by which the figure 7 has been converted into an 8. The paper also bears a notation as follows, Wernick was the special agent. About the same time the station agent made a freight receipt to the defendant in which for the carrier he acknowledges receiving from defendant for shipment to Merrill & Eldridge, Chicago, Ill., "6 tubs of butter" but adding thereto a notation as follows,
We think the paper thus made by the company, after its agent had charged the defendant with the larceny, and without the knowledge of defendant, was not competent evidence, and the objection thereto should have been sustained. But we are unable to see how it could have prejudiced the defense. Defendant claims to have delivered six tubs only, and the writing in question concedes the receipt of six tubs. The statement that there were two more tubs addressed to Merrill & Eldridge, and that defendant claimed to have delivered seven, was only what both the station agent and Wernick had testified to on the stand, and the written statement of the agent to the same effect can not be presumed to have given their version of the affair any increased weight in the minds of the jury.
II. The indictment charged the larceny to have been from the Chicago, Milwaukee & St. Paul Railway Company, a corporation, and the point is made that there is a failure of proof of the corporate character of the company. There was oral evidence by one of the company's agents that the Chicago, Milwaukee & St. Paul Railway Company was a corporation, and this was enough to take the case to the jury. Indeed, we are not prepared to say that an entire omission of all evidence on this point--no objection being raised until after verdict--would constitute any failure of proof requiring a new trial. Where corporate character is a mere collateral matter, not essential to the main question being tried, it may be established by parol proof or by proof that it is acting and doing business as such. Fleener v. State, 58 Ark. 98 (23 S.W. 1); Roberts v. Ice Co., 6 Daly 426; People v. Ah Sam, 41 Cal. 645; Doyle v. Company, 73 Ill. 273; Norton v. State, 74 Ind. 337; Reed v. State, 15 Ohio 217; Calkins v. State, 18 Ohio St. 366 (98 Am. Dec. 121); 1 McClain's Criminal Law, section 604; Code of Iowa, section 5286; State v. Congrove, 109 Iowa 66, 80 N.W. 227.
III. Counsel appear to base their demand for a reversal very largely on the alleged failure of the state to prove any asportation of the property charged to have been stolen. It will be remembered that the tubs of butter shipped by Day from...
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