The
following statement of the material facts which we quote from
the brief of the State will answer the purpose of our
consideration of the appeal.
"The
defendant, a resident of Cedar Rapids, and apparently engaged
in the sale of automobiles or used cars, had sold and
delivered a car to another person, upon the direction of Mr.
Keith, who told the defendant that he, Mr. Keith, would pay
the defendant for the car, it appearing that the person to
whom the car was delivered had sold some whisky to Mr. Keith,
and the latter still owed him for the whisky. There seems to
have been some delay on the part of Keith in paying the
defendant for this automobile, and the defendant then decided
to call upon a young man with whom he had been acquainted for
a number of years, by the name of Harold E. Hahn, to assist
him in getting his money. Harold Hahn was, at that time,
about 20 years old, married, and living in Cedar Rapids. A
few days before April 21, 1922, the defendant went to him,
and told him that Keith owed him some money, and that he
would not pay, and the defendant had decided that the only
way he could get his money would be to steal a diamond ring
that Mrs. Keith wore. In this first conversation the
defendant told Hahn that Keith was yellow, and would not
fight, no matter what happened, and that it would be an easy
job to take the ring away from Mrs. Keith, and that they
could take whatever money Mr. Keith had, at the same time.
The defendant also had Hahn attempt to collect some other
money that he had coming to him, and told Hahn that he was
pretty well broke. The defendant did not want to do the job
himself, because Keiths knew him, and would recognize him. He
told Hahn it would take three to do the job, and asked Hahn
to get someone to help him. A few days before the attempted
robbery, Hahn and the defendant drove to the home of Joe
Lucas, who was acquainted with Hahn, and Hahn told the
defendant he would get Lucas to assist in the job. Hahn had a
talk with Lucas in the presence of the defendant, in which he
asked Lucas if he would assist them in getting the diamond
ring from Mrs. Keith. Lucas agreed to assist them. After this
conversation, Hahn took the defendant over to town, and it
was agreed that they were to meet Lucas at 9 o'clock at
Mrs. Keith's. The defendant went to the drug store where
Mrs. Keith was working, and was gone 20 or 25
minutes, when he returned, and told Hahn that Mrs. Keith was
not working that evening; so the job was called off for that
time. The defendant then took Hahn out to the Keith home, and
they looked over the ground. They then returned, and planned
how they were to do the job. It was agreed that Hahn was to
meet Joe Lucas over to Hahn's house, and they were then
to go to the defendant's house, who would then see if
Mrs. Keith was working; and if she was, they were to go out
to Keith's and lay in wait until she came home, when they
were to rob her of the diamond ring, and Mr. Keith of any
money that he had. The defendant was to wait back in the
shadows, because they would recognize him, unless he was
needed. The defendant explained to Hahn and Lucas that the
ring was worth about $ 400. He also explained that, if they
got caught, they were to say nothing, and that he would get
them out of the trouble. The night of the attempted robbery,
Lucas and Hahn left any articles of identification that they
had upon them at the defendant's. The defendant told them
to park their car at a certain place, and arrange for a
get-away. Hahn was to watch Keith and keep him from assisting
his wife, while Lucas was to get the ring from Mrs. Keith.
The defendant also showed Hahn a ledger, showing that Keith
owed the defendant $ 60. After their conversation in the
defendant's room, Hahn and Lucas got into the car, and
parked it in front of the Brunswick pool hall. They then went
out to
Keith's place, and waited until they saw a car coming.
Hahn thought it was the Keith car, and called to the
defendant and Lucas to come on. The defendant, however,
stayed by a lumber pile, and Hahn went down to the car, where
Mrs. Keith got out and started to walk up the steps, when
Lucas grabbed her arm and told her to wait a moment. This
frightened her, and she ran up the steps and into the house,
and Lucas after her. He tried to get into the house; but Mr.
Keith got out of the automobile, and Lucas then jumped off
the porch and ran, with Mr. Keith following him. He ran into
a lumber pile, and Keith caught him and brought him back into
his house, where the police were called. Hahn, in the
meanwhile, went on up the street, where he got into the car,
and drove up Mt. Vernon Avenue, where he met the defendant,
who was out of breath, and said he had seen
Joe. While this robbery was being planned, and a few days
before the attempt was made, Hahn and the defendant went into
the drug store, to see if Mrs. Keith was there and whether
she had the ring on. Hahn stayed near the front of the store,
while the defendant walked back and spoke to Mrs. Keith, and
saw that she was wearing the ring. He then returned, and told
Hahn that Mrs. Keith was wearing the ring and a couple of
other rings, but that he didn't know just how good they
were. It was also agreed that, when the ring was sold, Hahn
was to get $ 175, Lucas $ 25, and the defendant $ 75. The
defendant and Hahn were to take the ring to Davenport and try
to sell it there. Mrs. Keith worked in the drug store where
the defendant had done some trading, and wore the diamond
ring while working there. Lucas and Hahn both pled guilty to
conspiracy, and were sentenced to a term of years in the
Reformatory, and were serving their sentence at the time of
the trial."
The
foregoing statement of facts is predicated, with very slight
exception, wholly upon the testimony of the coconspirators,
Hahn and Lucas. Mrs. Keith testified to the unsuccessful
attempt at robbery of her by Lucas and Hahn on the evening of
April 21st. She also testified that, a few days prior to
April 21st, the defendant had called at the drug store where
she was employed, and had talked with her, and that Hahn was
with him at that time. She also testified that the defendant
was a regular customer of the drug store, and was in there
frequently. This is the sum total of the corroborating
evidence, except some admissions made on behalf of defendant
by his counsel in his opening statement to the jury. One of
the grave questions in the case is the sufficiency of the
corroborative evidence to go to the jury. In view of our
conclusion upon other features of the record, and the
necessity of a new trial which arises therefrom, we will not
deal herein with that question. It may be entirely eliminated
upon a new trial. Instruction No. 11, given by the trial
court, was as follows:
"If
the State has satisfied you beyond a reasonable doubt that
the defendant, Teddy Tedd, alias Theo. Van Valkenberg, is
guilty of the crime charged in the indictment, to wit, that
he did willfully, unlawfully, and...