State v. Shearer
| Decision Date | 26 June 1928 |
| Docket Number | 38500 |
| Parties | STATE OF IOWA, Appellee, v. HARRY SHEARER, Appellant |
| Court | Iowa Supreme Court |
Appeal from Marshall District Court.--B. F. CUMMINGS, Judge.
The defendant was indicted for the crime of larceny of an automobile. From a judgment of conviction upon a verdict of guilty, appeal has been taken.--Reversed and remanded.
Reversed and remanded.
F. E Northup and R. L. Bryant, for appellant.
John Fletcher, Attorney-general, for appellee.
WAGNER J. STEVENS, C. J., and EVANS, FAVILLE, DE GRAFF, and ALBERT JJ., concur. MORLING and KINDIG, JJ., dissent.
On the evening of May 17, 1924, one George Stewart purchased a new Ford touring car at Grinnell. On account of the lateness of the hour, he did not procure a license for it, but took it to his home in Gilman, and a dealer's card was fastened on the wind shield. On the afternoon of the following day, he drove the car to Marshalltown, and went to a ball game at the fairgrounds, where he parked his car along with a lot of other automobiles. At the close of the game, his car was gone.
The defendant and his cousin, Jesse Arnold, were both indicted for the theft of the automobile. Arnold has been previously tried, but the result of the trial is not shown by the record.
The defendant was engaged in the dray business in the city of Marshalltown. Arnold had been in said city for about a week, staying at the home of Shearer's parents. During his stay there, Arnold and the defendant occupied the same room. The defendant and Arnold were each the owner of an old Ford car.
The defendant testified that, on the Sunday in question, Arnold did not eat the noonday meal at the Shearer home; that, in the afternoon, he started in his car for the ball game, and on the way, saw Arnold, who stopped him, and got in his car, asking him as to where he was going; that, upon being told by the defendant that he was going to the ball game, Arnold asked, "Won't you drive a car for me?" that he told Arnold he would rather see the ball game, and was informed by Arnold that it was too late for the ball game,--that it had started; that Arnold said he had got a car, and wanted him to drive it over to Colo, and that he (the defendant) didn't know where Arnold got the car; that he did not know which car it was, before they got to the fairgrounds; that he informed Arnold that he would drive the car; that they then went to the fairgrounds, and he parked his car about 60 feet from a car occupied by a lady; that he and Arnold alighted from the car driven by defendant, and they walked to the place of the location of the new Ford car, and that he raised the hood; that Arnold had told him, on the way to the fairgrounds, that he was not able to start the car; that, after raising the hood, he took a pair of pliers and tightened the coils and terminals; that Arnold then got in the new car and started it, and drove it away; that he entered his own car, and left the fairgrounds, and drove to his home, parked his car, and there entered Arnold's old car, and drove it to Colo, where he stopped at Reed's oil station for about a half hour, when the phone rang, and the proprietor informed him that he was wanted at the phone; that it was Arnold, at the other end of the line, saying that he was in Colo; that he had heard Arnold speak, several different times, of his intention of getting a new car; that, when he went to the fairgrounds that afternoon with Arnold, he believed this new car was Arnold's car, and had no intention of stealing the car, or assisting Arnold in any way to steal it; that he drove Arnold's old car to Colo because Arnold requested him to; that, at the fairgrounds, he went over to the new car because Arnold had told him that he was unable to start it, and to help him in the starting of the car; that he had an arrangement with Arnold to meet him at Colo, after they left the fairgrounds.
The only eyewitness for the State to the taking of the car, was a young lady who was studying in her father's automobile, while her father was at the ball game, said automobile being in close proximity to the car which was stolen. She testified that the stolen car had no numbers on it; that she tried to get the numbers, but that it did not have any; that she saw the two boys go to the car, and while she did not know them at that time, she saw them after the arrest, and identified Arnold as the man who drove the new car away, and the defendant as the one who raised the hood of said car, and had a wire, and took a pair of pliers from his pocket, and did some fixing about the car, and he then left the fairgrounds in the old car, the numbers of which she took, and wrote down on a piece of paper, which numbers proved to be those of the defendant's car.
The defendant and Arnold ate supper that evening at the home of Arnold's sister, Mrs. Croker, in Colo. They arrived there about 3 or 4 o'clock in the afternoon. How they came, is not shown by the record; but Mrs. Croker testified that her brother was in the house when the defendant arrived. A new Ford car was placed in the barn at the Croker home. Mrs. Croker testified, with reference thereto:
The defendant and Arnold left the Croker home that evening in Arnold's car.
At supper time, Mrs. Croker's son went to the barn, where the new car and the defendant and Arnold were, to call them to supper; and he testified, in substance, that the horn was off of the car, lying on the fender, and that he saw the defendant have a file, and that the hood was raised at the time, and that he was filing something; that, after the filing, it was his belief that they put the horn back on; that he asked them where they got the car, and they said, "At Marshalltown."
On the morning of May 20th, a Ford touring car, without numbers on it, and with a screw driver lying in the back seat, was found in the road near State Center. The battery was gone, and the engine number had been defaced, and was not readable. The car was taken to State Center, and Stewart identified the car as being the one he purchased, the Saturday night previously.
Stewart testified that there was a bolt out under the dashboard in the coil box, and that, prior to his going to Marshalltown on Sunday, he put an old rusty bolt in the missing place; and he identified the car by reason thereof, and also by the screw driver, which he had marked with two crosses thereon, and which was found in the car. It is shown by the record that the horn on the car was on the same side as the engine number.
The defendant gave bond for his appearance at the preliminary examination, but failed to appear, and his bond was forfeited. He went to Canada, and was there until he was apprehended and returned to Marshalltown, about six weeks prior to the time of his trial.
The defendant complains of an instruction based upon Section 12895 of the Code of 1924, saying therein that there is no distinction between an accessory before the fact and a principal, and that all persons concerned in the commission of a public offense, whether they directly commit the act constituting the offense or aid and abet its commission, must be indicted, tried, and punished as principals. The defendant's specific exception to said instruction is that there was no evidence upon which to submit any such proposition, and that the defendant was either guilty as a principal, or not at all. The evidence, as shown by the record, is a complete answer to this contention of the defendant's.
In another instruction, the court told the jury that the evidence shows that the defendant did not personally drive away the Ford automobile from the fairgrounds, where it was parked, and that one of the questions for them to determine is whether the defendant knew that the Ford automobile was being stolen by Arnold; and that, if they believed from the evidence that the defendant was innocent of any intention to aid in the larceny of the car, and believed that the Ford automobile belonged to Arnold, and that what the defendant was doing was merely a friendly act, and that he had no intention of aiding Arnold in a larceny, then they should return a verdict of not guilty.
It is obvious that the instructions were correct, and that the defendant has no ground of complaint at this point.
The defendant complains because the court did not give an instruction on circumstantial evidence. It will be seen from the record, which we have set out quite fully, that the evidence is not wholly circumstantial....
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