State v. Wenks

• Decision Date: 10 March 1925
• Docket Number: 36160
• Citation: 202 N.W. 753,200 Iowa 669
• Parties: STATE OF IOWA, Appellee, v. J. E. WENKS, Appellant
• Court: Iowa Supreme Court

202 N.W. 753

200 Iowa 669

STATE OF IOWA, Appellee, v. J. E. WENKS, Appellant

No. 36160

Supreme Court of Iowa, Des Moines

March 10, 1925

REHEARING DENIED OCTOBER 2, 1925.

Appeal from Polk District Court.--W. G. BONNER, Judge.

THE defendant was indicted for receiving stolen property; and upon trial was found guilty; and prosecutes this appeal.

Affirmed.

James W. Wilson, for appellant.

Ben J Gibson, Attorney-general, and Neill Garrett, Assistant Attorney-general, for appellee.

FAVILLE C. J. STEVENS, ARTHUR, and VERMILION, JJ., concur.

OPINION

FAVILLE, C. J.

The defendant was the proprietor of a barber shop in the city of Des Moines. The Fitch Company is a manufacturer of barber supplies in the city of Des Moines. One Hutton was in the employ of the said Fitch Company, as shipping clerk. In June, 1921, a large quantity of the products of the Fitch Company was stolen by Hutton and delivered to appellant. Ninety full cases and nine partly filled cases of certain tonics and other barber supplies were found on the premises occupied by appellant as his home. The value was shown to be about $ 1,300. Hutton was a witness in behalf of the State, and testified fully in regard to the transactions between him and appellant. It appears that Hutton caused the goods of the Fitch Company to be delivered to appellant's residence, and that he was reimbursed by appellant in an amount very substantially less than the value of the goods.

I. It is contended that the court erred in admitting in evidence the exhibits, being the stolen property, which were seized upon the premises of appellant. It is urged that the search warrant was issued for the mere purpose of obtaining evidence against appellant, and that the evidence so obtained cannot be used against him. Appellant's contention is fully answered by our recent decisions in State v. Tonn, 195 Iowa 94, 191 N.W. 530; Joyner v. Utterback, 196 Iowa 1040, 195 N.W. 594.

II. It is urged that the officers did not give appellant a receipt for the property that was taken under the search warrant, and that, because of the failure so to do, the exhibits were not admissible in evidence.

If it be conceded that it was the duty of the officers to give to the person having possession of the property a receipt for such property so taken under a search warrant, the failure so to do would not deprive the State of its evidence, nor render said property inadmissible in evidence merely because of the failure to execute such receipt. State v. Tonn, supra; Joyner v. Utterback, supra. See, however, Code of 1897, Section 5568 (Code of 1924, Section 13441).

III. Appellant contends that the witness Hutton, who stole the goods and caused them to be delivered to appellant, was the accomplice of appellant, and therefore the court should have instructed the jury that it was necessary that said accomplice be corroborated, in order to warrant a conviction.

It is the rule in this state that the thief who stole the property is not, under the statute involved in this indictment, the accomplice of the receiver of the...