State v. Vesey

• Decision Date: 19 May 1976
• Docket Number: No. 58806,58806
• Citation: 241 N.W.2d 888
• Parties: STATE of Iowa, Appellee, v. Kenneth VESEY, Appellant.
• Court: Iowa Supreme Court

Page 888

241 N.W.2d 888

STATE of Iowa, Appellee, v. Kenneth VESEY, Appellant.

No. 58806.

Supreme Court of Iowa.

May 19, 1976.

Morris & Morris, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., John W. Criswell, County Atty., for appellee.

Submitted to REYNOLDSON, Acting C. J., and LeGRAND, REES, UHLENHOPP and McCORMICK, JJ.

McCORMICK, Justice.

Defendant appeals his conviction and sentence for breaking and entering in violation of § 708.8, The Code. The sole question is whether the jury could find the testimony of an alleged accomplice was corroborated. We reverse because we do not find requisite corroborative evidence.

Defendant was charged with breaking and entering a Superamerica gas station in Indianola in the early morning of April 2, 1975. The State's theory was that he aided and abetted Michael Edward Webb by acting as a lookout during the break-in. No issue is raised regarding the Corpus delicti of the offense. The station was broken into at sometime between 2:00 a.m. and 3:00 a.m. on the morning involved, and a quantity of food and cash was taken.

The State relied on testimony of Webb and Janice Keeney to prove defendant's complicity in the offense. Webb resided with Keeney. Her home was located across an alley from the Superamerica station. A Sinclair station was located across the street.

Webb testified that he and defendant were good friends. They started drinking together about noon on April 1, 1975, at an Indianola tavern called 'Wrongdaddy's'. They remained in the tavern drinking until about 1:45 a.m. April 2. Then they went to another tavern called 'Tomcat's' where they remained until it closed about 2:00 a.m. Webb testified they then walked toward the Keeney home through the alley which separated it from the Superamerica station. He said they were both intoxicated and used the alley to avoid being seen.

Webb then testified, 'I said something about I was going to break into some place or something,' to which defendant responded, 'No, we are in enough trouble.' He said he then started across the street to the Sinclair station. He testified defendant started to cross the street with him but turned back saying, 'I am not doing anything, because I am in enough trouble now.' Webb said defendant got into Keeney's car which was parked in the alley next to her house and remained there. Both gas stations would be visible from the car.

Webb testified he entered the Sinclair station after breaking a window and cutting his fist, but he asserted he took nothing from it. After that he said he walked back across the street, kicked in a front window of the Superamerica station, entered it, and took some weiners, lunch meat, a half carton of milk, eight or nine packs of cigarettes, some rolls of coins and some currency.

He estimated the entire episode took fifteen or twenty minutes. He said he then walked to Keeney's house and found defendant sitting in the car asleep. He said he put the food down on the ground while he woke defendant, then knocked on the door and rang the door bell. Keeney let them in the house. Webb said defendant immediately lay down on a bed and fell asleep. Webb said he went back outside, got the food, put it in the refrigerator, and then fell asleep on the sofa.

He testified the only contact defendant had with any of the stolen articles occurred when defendant asked him the next morning if he had any cigarettes and Webb gave him one or two packs, which may have been taken in the break-in. They were a brand Webb regularly smoked, and Webb did not tell defendant he had stolen them.

Janice Keeney testified she was asleep when awakened by the door bell at about 3:00 a.m. She said she admitted the men without talking to them, observed they had been drinking, and went back to bed. Hearing Webb in the kitchen, she got up to tell him to be quiet. Before returning to bed, she saw defendant in another bed. Webb gave her a pack of cigarettes the next morning. Later she gave defendant and Webb a ride to a local tavern on her way to work. She noticed the seat in the car had been moved back, and defendant told her he had moved it in order to lie down on the seat. She said she knew nothing of the break-in and did not see the extra food in her refrigerator until late that afternoon.

Defendant testified in his own behalf. Although he acknowledge he had been with Webb, he said he refused to participate in any break-in, sat in Keeney's car and fell asleep. He said the car was parked facing north toward Keeney's garage. The Sinclair station was across the street to the south, and the Superamerica station was across the alley to the east. He denied observing or participating in any way in the break-ins.

Defendant challenged the sufficiency of corroborative evidence by motion for directed verdict made at the conclusion of all the evidence. His motion was overruled. The case was submitted to the jury, and the jury found defendant guilty. Defendant assigns the overruling of his motion for directed verdict as error.

The State contends Webb's testimony was sufficiently corroborated by the testimony of Keeney and defendant to justify submission of the case to the jury.

The corroboration requirement is found in § 782.5, The Code.

'A conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence which shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.'

Application of this statute involves several well-settled general principles. The existence of corroborative evidence is a question of law for the court, but its sufficiency is ordinarily a question of fact for the jury. It need not be strong. Any corroborative evidence which tends to connect the accused with the commission of the crime and thereby supports the credibility of the accomplice is sufficient. Such evidence may be direct or circumstantial. It must be inculpatory but need not be entirely inconsistent with innocence. Each case must be judged on its own facts. State v. Nepple, 211 N.W.2d 330, 331--332 (Iowa 1973), and citations.

Whether...