State v. Rye

• Decision Date: 07 February 1967
• Docket Number: No. 52088,52088
• Citation: 148 N.W.2d 632,260 Iowa 146
• Parties: STATE of Iowa, Appellee, v. Joanne RYE, Appellant.
• Court: Iowa Supreme Court

Page 632

148 N.W.2d 632

260 Iowa 146

STATE of Iowa, Appellee, v. Joanne RYE, Appellant.

No. 52088.

Supreme Court of Iowa.

Feb. 7, 1967.

Gill & Huscher, Des Moines, for appellant.

Lawrence F. Scalise, Atty. Gen., Ray Fenton, County Atty., of counsel, Craig Sawyer, Des Moines, for appellee.

SNELL, Justice.

Because a rehearing was granted the former opinion herein, reported in 145 N.W.2d 608 is withdrawn and the following substituted therefor.

Defendant was convicted of larceny of property having a value in excess of $20 and was sentenced to five years imprisonment in the women's reformatory. She appeals the jury verdict and judgment on several grounds.

Two plain clothes detectives of the Des Moines police force were on duty in an unmarked police car Friday morning, August 6, 1965. They received a report from the police radio dispatcher that a black suit had been taken from Herman Kucharos Men's Store. The suspects were reported as two women, one wearing a blonde wig, who were reported to have gotten into a car driven by an unidentified third person. The license number was given to the officers. They knew the type of car they were to look for, the owner of the car and his address all from previous experience with the owner.

The officers found the car about 15 minutes later. They followed it to the owner's home where it pulled to the curb, coming almost to a complete stop. The car was being driven by a man and had two women passengers. As the unmarked police car pulled up, the car sped away at a high rate of speed. The officers followed. The car then stopped after being told to pull over. As the car was being followed after speeding away, the two women passengers were observed passing garments between them in what the officers described as an abnormal way. The garments were not in shopping bags or other containers.

When the car was stopped the officers approached it. The driver, Richard Evans, was asked why he was trying to get away. He shrugged his shoulders and said he didn't know. The officers could see into the car. Defendant was sitting in the rear on the passenger's side. She had a black purse in her lap that bulged, part of a garment was sticking out of the purse. The other lady also had a handbag with garments sticking out of it. A blonde wig was in defendant's lap. The officers also saw a suede coat with a mink collar on it which was between the two women and in defendant's hand. They also saw a white pillow case on the floor of the back seat between defendant's feet. A mink stole was in the pillow case. No man's suit was seen at this time nor was any such suit ever found.

The occupants of the car were told to get out, that they were going to the police station for shoplifting. Other articles were found in the car coincidental to this arrest.

I. Defendant predicates several errors on the assertion that the arrest was illegal. This contention should be first examined. Defendant's position is that the arrest here was made and was actually complete when the car was ordered by the officers to stop and actually did stop in compliance with that order. The State does not concede this proposition but states that the point makes no difference as the officers had sufficient information for a legal arrest both when they ordered the car to stop, and when they ordered the people out of the car.

We are not prepared to hold that every order to stop by a policeman to the driver of a moving vehicle, is, when obeyed, an arrest of all of the occupants of that vehicle. This problem has been examined in detail in several United States Supreme Court cases. A close look at the facts and the holdings indicates that the moment when arrest is made depends upon the facts of each case.

The cases recognize that officers do not have an absolute right to stop automobiles for investigation on mere whim or mere suspicion. Each case, under the circumstances reviewed, found that the officers had probable cause to stop the vehicle and that the arrest occurred after other suspicious circumstances added additional reason for probable cause for the subsequent arrest.

Under the circumstances shown here we hold that the actions of the officers in stopping the car in which defendant was riding were taken on probable cause, and the subsequent formal arrest after seeing the clothing in the automobile met the statutory requirement of Code, 1966, section 755.4(3); i.e., that the officers had reasonable ground to believe that an indicatable public offense was committed and that the person to be arrested had committed it.

The fact that the initial cause for stopping defendant was the report of theft of a man's suit and that such a suit was never found, much less connected to defendant, does not vitiate the proceedings. In State v. Freeland, 255 Iowa 1334, 125 N.W.2d 825 the initial stopping was because the license plate was painted over and there were recent breakins in the vicinity; in Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134, the fact that officers were looking for stolen whiskey but found stolen radios was not determinative.

II. The state called two employees of Wolf's store to testify as to the garments offered in evidence. To summarize; they were both buyers, Ruth Gesland in sportswear and Beatrice Best in suits, coats and furs; they detailed the store's procedure as to pricing, inventory control, use of tickets on garments, sales by cash or by credit, use of cash register when sales were made and other details of the store's customary practices. Ruth Gesland testified that exhibits A, B, C and D all had three part perforated tickets on them. One part of the ticket is customarily torn off when the garment is sold. These tickets are checked daily as part of the inventory control. The third part was intact on all four items when recovered and in court. She had personally hung exhibit D on the rack at Wolf's at 9:30 the morning of the arrest. She also testified that she had checked the cash register. As to the gray three piece wool suit she was then allowed to state of her own personal knowledge that the dress had not been sold.

Beatrice Best testified that it was her responsibility to maintain inventory. That she had seen the mink fur in question the morning of the arrest and detailed the procedures in connection with recording the sale of such a fur. She then testified that she knew of her own knowledge that this fur had not been sold. The two witnesses testified as to the retail and wholesale prices of the various items. All prices exceeded $20. Total retail price of all items came to some $542.43.

Defendant strenuously objects to all of this testimony stating that the testimony as to inventory, sales tickets and marking procedure, bookkeeping and inventory control calls for the opinion and conclusion of the witness without proper foundation, that the best evidence is the records themselves, that the testimony assumed facts not in evidence and that it was hearsay as to defendant. As to the opinion and conclusion evidence in relation to company practices, the objections were clearly without merit. The foundation established these two witnesses as regular employees of Wolf's, their duties included the very practices and procedures outlined by the witnesses and their testimony established the fact that they were familiar with both the merchandise and the method of the store's handling of that merchandise.

The most serious objection by defendant goes to witness Gesland's answer to the following question.

'Q. Of your own personal knowledge as buyer of this department and as a result of searching the records, do you know whether or not this particular garment Exhibit 'D' was sold on August 6, 1965?'

Objection made by defense counsel.

'A. I do the unit control books--I check the cash register, the dress had not been sold.'

A properly qualified witness may orally testify to a search of books or records and to the fact that such search fails to reflect a certain transaction. In re Colton's Estate, 129 Iowa 542, 105 N.W. 1008, 'We think the negative sought to be established may be proven like any other fact; that is, by one possessing the necessary information.' Under the circumstances here it would not be necessary to produce the records of Wolf's. See also Cohen v. Boston Edison Co., 322 Mass. 239, 76 N.E.2d 766 and McCormick, Evidence, section 198, page 411.

Here the witness' knowledge of the merchandise and the pertinent records qualified her to testify to the negative fact that the item had not been sold. This was equally true of the fur buyer's testimony even though under a similar but different system of control, she did not testify to having checked the cash register. The probative value of this testimony was for the jury.

III. Defendant also predicates error on the court's instruction No. 9 which told the jury that possession of property recently stolen is evidence from which an inference may be drawn that the person or persons in whose possession it is found are guilty of larceny thereof. Defendant argues that this instruction should not have been given because there was no evidence that the stolen property was in defendant's exclusive possession. Suffice to note that there was testimony from which the jury could find that Exhibits A and D were taken from defendant's purse and the mink stole was in a pillow case between defendant's feet. The evidence of possession was sufficient to justify the instruction.

Defendant requested no instructions amplifying instruction No. 9. The instruction as given adequately covers the subject in the absence of additional specific request for elaboration. See State v. Baker, 246 Iowa 215, 66 N.W.2d 303.

IV. Defendant's fourth area of complaint concerns the testimony of the officers as to certain statements and admissions made at the police station immediately after the arrest.

At the scene of the arrest defendant's companion informed the police that she...