State v. Strum
| Decision Date | 22 November 1918 |
| Docket Number | 32400 |
| Citation | 169 N.W. 373,184 Iowa 1165 |
| Parties | STATE OF IOWA, Appellee, v. MAX STRUM, Appellant |
| Court | Iowa Supreme Court |
Appeal from Black Hawk District Court.--C. W. MULLAN, Judge.
APPEAL from a conviction for receiving stolen property. --Reversed and remanded.
Reversed and remanded.
V. L Belt and Mears & Lovejoy, for appellant.
H. M Havner, Attorney General, and F. C. Davidson, Assistant Attorney General, for appellee.
Whatever effect upon the right to review the presence or absence of an adequate point, under the caption "Errors Relied Upon for Reversal," may have, it is thoroughly well settled that nothing will be reviewed which is not included in some "brief point." Under this limitation, the only question we have as to the propriety of receiving testimony on the value of the things stolen is raised by Brief Point 1, which, in effect, complains that the State made no attempt to prove the actual value, on the theory that there was no market value: wherefore, it was error to permit a witness who shows he has no knowledge as to the market value of any of these things, and who testifies there was no market value for such articles in Waterloo, to testify what the market value of these articles was in Waterloo. Further light is thrown upon the complaint by the citations in support of this proposition, to wit: Engster v. State, 11 Neb. 539 (10 N.W. 453); 34 Cyc. 529; State v. Feinberg, 145 Iowa 329, 124 N.W. 208. This complaint is directed to the witness Bird. He was a manager in the plant from which the property in question was stolen. He says it is his duty to buy supplies and repair parts for the machinery in the plant, and that he keeps himself posted in regard to the prices. He shows he knows the general nature of the things stolen, such as what they were used for, where attached, the material of which they were made, and how constructed, how much wear there was on them, and their general condition at the time of taking, their original cost, or the original cost of things like them, their cost, new, and at the time taken. He says he knows the price of the repair parts of this machinery. He has a catalog from the Chicago Wrecking House people, who quote "all secondhand goods." He admits he never bought or sold a secondhand filler; that he has no knowledge of any can filler that had been used for two years being sold anywhere, and no knowledge of the value of the stolen property; and he testifies he is familiar with the general market value in Waterloo of the articles in question at the time the indictment charges they were received by the defendant. It is also true, however, that, at times, he seems to base himself upon what the property stolen would be worth to some buyer who had special use for them, or to himself, and says he does not know what others would give. True, also, he testifies there is no market for this stuff in Waterloo, and that the Artificial Ice Company would be the exclusive market, because it is the only ice plant in Waterloo.
On this foundation, he was allowed, over apt objections, to testify concerning the reasonable market value of some of the articles alleged to have been stolen, giving their value as of the time defendant is charged with receiving them. The question is whether the reception of this testimony constitutes error.
Engster v. State, 11 Neb. 539 (10 N.W. 453), lays down the general proposition that, before a witness is competent to testify as to the value of property, he must show by his testimony that he has knowledge of the value of such property. In that case, one witness, being asked whether he was a judge of clothing, answered, "Yes, of my own," and testified, too, that he "guesses he was a judge of the price of clothing." Another testified he had worked in a general merchandise store, and thinks he is acquainted with the value of clothing; and he was then permitted to testify as to value, though it nowhere appears he had purchased or sold clothing, or knew anything of its value. It was held that no competency was shown. But we think the rule is not thus strict in this jurisdiction. In Jeffries v. Snyder, 110 Iowa 359, 81 N.W. 678, we held that one owning or using household goods is competent to testify as to their value, without showing special qualifications enabling him to express an opinion. In Colby v. Kimball, 99 Iowa 321, 68 N.W. 786, it is held that, in the absence of specific objection to the competency of the witness, he may give his opinion as to the value of a piano, although he has not been expressly examined with respect to his knowledge of value, if he has so testified as to show that he knows something of pianos. In State v. Finch, 70 Iowa 316, 30 N.W. 578, we go so far as to hold that where, in a prosecution for the larceny of a sealskin overcoat, a witness testifies he had never seen such a coat bought or sold, and did not show he had any knowledge of the value of such an article, except such as any man of ordinary intelligence might be presumed to have, his testimony as to the value of the coat was admissible. In State v. Hathaway, 100 Iowa 225, 69 N.W. 449, it is held that, where the article stolen consists of a trunk containing the family wearing apparel, the wife of prosecutor, after testifying that she knew the value of the articles, is competent to testify as to such value, though she may not have known the value in a secondhand store, or at public auction. The holding of McMahon v. City of Dubuque, 107 Iowa 62, 77 N.W. 517, is that, on a negligent burning of household goods and wearing apparel used by a family, the actual value, based on their cost, condition, and age, and not their market value, is the measure of damages. In Latham v. Shipley, 86 Iowa 543, 53 N.W. 342, there was no evidence that a machine used by printers, and possessing the same defects as the one in inquiry, was so common as to be considered in fixing prices, and no testimony that such had a fixed market value in Chicago; but it was held that one who was shown to have a practical knowledge of such machines, from his avocation as a printer, and to know something of their value from price lists, was competent to testify as to the value of the machine in question. And while the general market value of stolen property governs, in determining its value in case of larceny, when this property has no general market value, the original cost may be shown, in connection with its condition at the time of the larceny, to prove its value when stolen. State v. Lewis, 144 Iowa 483, 123 N.W. 168.
We incline to think that the objections to the testimony of Bird are not well taken.
"Comes now the defendant in open court, in the presence of the court and jury, and states that whatever act he did with which he is charged, he did it designedly; that it was not accidental or unintentional or through inadvertence; and that whatever he did, he did knowingly."
Over apt objection, testimony was admitted tending to show that the defendant had bought stolen property through a transaction not connected with the one being prosecuted for and occurring prior to the act upon which the indictment is based. One defense of its admission made by the State is that evidence of the purchase of other stolen brass is admissible to show the intent, and the absence of mistake or accident; and the many cases cited for this proposition fully sustain the statement. But the question remains whether, since this is the only purpose for which such evidence is properly receivable, it may be adduced, over objection, when there is an admission of record that there was no accident or mistake, and that whatever was done was done intentionally and knowingly. On this question, the State relies upon State v. Stansberry, 182 Iowa 908, 166 N.W. 359, and some other decisions, including one in Kansas, which are fully considered in the Stansberry case. There is nothing in that case that permits evidence which is manifestly needless, and is calculated to arouse prejudice. The reasoning upon which the case is bottomed is that the bloody clothing of one assaulted, where it is charged there was an intent to murder, may be received in evidence, though the defendant concedes on the trial "that whatever described by Dr. Printz by the way of cuts resulting in loss of blood were made by this defendant, and made by him in the exercise of right of self-defense;" and its reasoning is that, since this concession does not admit an intent to murder, and, at most, amounts to no more than saying that the wounds were no worse than one witness for the State describes, such admission could not foreclose the right of the State to show, by the condition of the clothing, that the injury was more aggravated than the testimony of the doctor disclosed, and was of such character as to indicate an intent to murder. It is manifest that this case cannot rule, if it once be conceded that, in whatsoever the defendant here did, he acted, not by accident or mistake, but intentionally and knowingly; that it cannot rule where testimony is forced into the record which has no right to be there, except to show that the defendant did act intentionally, after he has solemnly admitted of record that this is so. We do not see that McIntire v. State, 10 Ind. 26, adds much to the position of appellant. It holds that it is error to permit testimony tending to show that the person of whom defendant had received the property had stolen other property of the same kind from another person at a different time. On the other...
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