State v. Shilinsky, 49034

• Decision Date: 05 March 1957
• Docket Number: No. 49034,49034
• Parties: STATE of Iowa, Appellee, v. Charles SHILINSKY, Appellant.
• Court: Iowa Supreme Court

Page 444

81 N.W.2d 444

248 Iowa 596

STATE of Iowa, Appellee, v. Charles SHILINSKY, Appellant.

No. 49034.

Supreme Court of Iowa.

March 5, 1957.

Verne Lawyer and Robert D. Ray, Des Moines, for appellant.

Norman A. Erbe, Atty. Gen., Freeman H. Forrest, Asst. Atty. Gen., and Ray Hanrahan, County Atty., Des Moines, for appellee.

THOMPSON, Justice.

The defendant's 'propositions' (which we take to mean 'errors') relied upon for reversal are three in number. As stated, they are first, that the court erred in denying his motion to set aside the verdict and grant a new trial; second, that the court erred in giving Instruction No. 4; and third, that there was error in the action of the court in first sentencing defendant to a term in the county jail, and then recalling him two days later and sentencing him to an indeterminate period in the state penitentiary. We shall discuss these in order.

I. An understanding of the question raised by the first assignment requires a statement and discussion of the evidence. On February 7, 1956, Mrs. Vera Randall, a clerk employed in the store of the H. L. Green Company, located at 507 Walnut Street, in Des Moines, observed the defendant standing near the toy counter where she was at work. He spoke to her, asking her name and saying she was 'a good-looking babe.' She walked away. The defendant moved to another counter. Mrs. Randall was called to another counter near by. At the toy counter there was a cash drawer, equipped with a bell which rang when the drawer was opened. This drawer was not used in connection with the ordinary sales, but was a reserve depository for change which the clerks could resort to when needed. The drawer was under the counter.

Mrs. Randall testified that each morning $150 was put in the drawer, and that she had put in that amount on the morning of the day in question. She had just been to the office to get some more change and had procured $50 in one dollar bills to be placed in the drawer. These bills were lying on the counter. The amount of money in the drawer stayed at $150, unless someone made a mistake. it being used only for making change for the surrounding counters. While Mrs. Randall was at the adjoining counter she heard the bell on the cash drawer ring, saw the defendant at the drawer and saw him grab a handful of bills. She saw him seize the bills she had just procured from the office. She screamed and ran after him. Mrs. Donna Haug, another clerk, heard the bell ring and saw the defendant at the cash drawer. She did not see him take the money, as he had his back to her. Ross Genovese, grocery manager in the store, saw the defendant open the drawer and take a handful of bills. He also pursued the defendant.

The hue and cry being thus raised, the next few moments were full of action. Both defendant's ability at sneak thievery and his speed afoot seem to have been distinctly second rate. Mrs. Randall first caught up with him, but he broke away from her. Ross Genovese next seized him, but he slipped out of his coat and ran out of the store and down an alley. By this time Benny Genovese, a brother of Ross and likewise a store employe, had joined in the chase. It proceeded down the alley to Fifth Street, then along Fifth Street to Locust, and then west on Locust. A traffic officer, Robert Warren, who was on duty at Fifth and Locust, joined in the pursuit. Benny Genovese showed the most speed of all the runners. He shortly overhauled the defendant, throwing him to the sidewalk and holding him until the police officer arrived.

Robert Warren, the policeman, testifies that he took the defendant back to the store and with another officer searched him in the office. Seventy one dollar bills were found on him. A piece of paper was put around the money. Three of the bills were marked by the officers and by the Genoveses; and both Ross and Benny Genovese and Officers Warren and Samuel Funaro who also came to the store office, either signed their names or initials on the blue and brown paper band that was put around the entire package of 70 one dollar bills taken from the defendant.

When this package was produced and identified at the trial, the paper band had been broken. Over objection, however, it was admitted in evidence. It is defendant's contention at this point that there was insufficient identification of the package, it should not have been admitted, and without it there was a lack of competent evidence to show that he was guilty of the crime charged.

We are unable to agree. While there was no explanation of the manner in which the identifying band was broken, we think the circumstance went to the weight of the evidence rather than to its admissibility. Seventy dollar bills were shown by the testimony of several witnesses to have been placed in the band at the time the defendant was searched; and seventy dollar bills were still there when the exhibit was offered in court. Three of these were exactly identified by names or initials placed upon them. It is true the other sixty-seven bills were not marked and so no one could say definitely that they were the identical ones taken from the defendant, or from the store. But they were properly admitted in evidence. There is testimony that the defendant seized a 'handful' of bills from the counter and the cash drawer; and seventy bills were found upon his person. They were placed in the paper band. The only reason for a claim that they may not have been the same ones placed in the band at the time of the search is the fact that the band was broken, how or by whom not being shown. The number of bills was the same. Why anyone would have a reason for removing the sixty-seven unmarked bills and substituting sixty-seven others is difficult to understand, and no motive therefor is suggested. Clearly, the question of identity was for the jury. The weight of the evidence rather than its competency is the matter to be decided under these circumstances.

Underhill's Criminal Evidence, Fourth Edition, section 510, at page 1034 says: 'The question of identity of property received in evidence as the stolen money is for the jury.' A similar problem was dealt with in Hooten v. State, 53 Tex.Cr. 6, 108 S.W. 651, 653. We said in State v. Williams, 245 Iowa 494, 505, 62 N.W.2d 742, 748:

'The trial court has considerable discretion in determining the admissibility of demonstrative evidence but great latitude is shown in admitting it and it is usually received if it affords a basis for a reasonable inference on a point in issue.' See also State v. Bales, 246 Iowa 446, 450, 451, 68 N.W.2d 95, and cases cited; and State v. Kindschuh, Iowa, 80 N.W.2d 750.

We are clear that the trial court was well within its discretion in admitting the money in evidence. It is also apparent that, even if it had not been admitted, there would have been a jury question not only upon the question of larceny, but likewise as to the amount of the money taken. These were the essential matters in the case. Mrs. Randall testified that she saw the defendant seize the fifty one dollar bills which she had just brought from the upstairs office. She said that she had placed $150 in the cash drawer in the morning, and that the amount would remain the same through the day, except for possible mistakes by the clerks in using the drawer to procure change. We find in the appellee's denial of and amendment to the abstract, testimony of Ross Genovese, who said that he checked with the floor lady 'how much money was missing from the cash drawer which was $71.00.' The record shows no objection to this evidence.

It is our conclusion that the...