State v. Wilson

• Decision Date: 13 January 1970
• Docket Number: No. 53298,53298
• Citation: 173 N.W.2d 563
• Parties: STATE of Iowa, Appellee, v. Kenneth WILSON, Appellant.
• Court: Iowa Supreme Court

Page 563

173 N.W.2d 563

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

No. 53298.

Supreme Court of Iowa.

Jan. 13, 1970.

R. Fred Dumbaugh, Cedar Rapids, for appellant.

Richard Turner, Atty. Gen., James C. Sell, Asst. Atty. Gen., and William G. Faches, County Atty., for appellee.

RAWLINGS, Justice.

Defendant appeals from judgment entered pursuant to jury verdict finding him guilty of uttering a forged instrument in violation of section 718.2, Code, 1966, as charged by county attorney's information. We affirm.

In course of trial Ronald Gerald, a clerk at the Me Too Store in Cedar Rapids, testified to the effect that about 4:30 p.m., April 5, 1968, he cashed two payroll checks purportedly issued by Navajo Freight Lines. One of the checks, exhibit 22, was passed to him by defendant. Shortly after quitting time he was told the checks might be worthless. two weeks later they were returned marked stolen.

Another witness, Steve Humburg, employee of the Sun Mart Grocery, related he also received a Navajo Freight Lines check from defendant. This occurred April 4, 1968. It was subsequently returned with a like notation.

The record discloses two other such checks were cashed by defendant about the same time at the HyVee Store in Marion.

Roy Edwin Redfern, a HyVee employee, testified that April 5, at about 5:00 p.m., he went to the Eagle Store, Lindale Plaza in Cedar Rapids. Some men, including defendant, were there present, attempting to cash some Navajo checks. The police were notified.

Michael Ellis, Eagle Store manager, stated that after the two men presented the Navajo checks, word was received by him to the effect they were stolen. He attempted to delay defendant and his companion until police officers arrived, but was told by defendant, 'Don't follow me another step or I'll shoot you.' The men then left the store. Steven Scott, a part-time Eagle store employee, was told to follow the men and in doing so was twice told by defendant, 'Don't follow me, boy, or I'll shoot you.'

Also about 5:00 p.m., April 5, 1968, Detective Kenneth Millsap of the Cedar Rapids Police Department received a radio dispatch directing that he go to the Eagle Store, and be on the alert for a blue 1965 Chevrolet with foreign license plate.

When Millsap arrived at the Plaza, he observed a vehicle fitting the lookout description given. He saw the car being driven away, went in pursuit and, with the aid of two other officers, later stopped the vehicle. As officer Millsap approached the car he saw the accused, then sitting on the passenger side, reach under his coat and remove what appeared to be a small caliber pistol which was then placed under the front seat. There were two other men in the Chevrolet.

After the three subjects had been removed from the vehicle Millsap searched it. Under the front seat was found a pistol in a holster and an envelope containing a large sum of money. In the glove compartment he discovered a blackjack and partially full box of ammunition for the revolver. In the back seat were some new men's clothing. The search also produced two sacks containing carbon copies of blank payroll checks, cigarettes and several magazines. A tool box, typewriter, two suitcases, shaving bags, a CO2 pellet gun, and check protector were discovered in the car trunk. One of the suit cases, with cards bearing defendant's name in it, contained another pistol. The guns, ammunition, and blackjack were admitted in evidence over defendant's objections.

On appeal no issue is presented as to validity of the arrest or attendant search. Rather, the sole error relied on for reversal is that the items seized were irrelevant to the issues involved, and improperly admitted in evidence.

I. In legal usage, 'relevancy' means the logical relationship between proposed evidence and a fact to be established, the tendency to establish a material proposition. And evidence must generally have probative value to be relevant. State v. Theodore, 260 Iowa 1038, 1043--1044, 150 N.W.2d 612; State v. Wallace, 259 Iowa 765, 769--771, 145 N.W.2d 615; State v. Knox, 236 Iowa 499, 541--515, 18 N.W.2d 716; Jones on Evidence, Fourth Ed., sections 135--138, pages 236--243; McCormick, Treatise on Evidence, pages 315--316; Underhill's Criminal Evidence, Fifth Ed., section 11, page 12; 31A C.J.S. Evidence sections 158--159, pages 426--438; 29 Am.Jur.2d, Evidence, sections 251--252, pages 299--304; and 22A C.J.S. Criminal Law section 600, page 385.

II. On the other hand, circumstances attendant upon crime connected flight, and arrest, are ordinarily admissible in evidence. State v. Bester, Iowa, 167 N.W.2d 705, 711; State v. Theodore, supra; State v. Ford, 259 Iowa 744, 750--751, 145 N.W.2d 638; State v. Agee, 257 Iowa 1345, 1349, 136 N.W.2d 419; State v. Harless, 249 Iowa 530, 534--535, 86 N.W.2d 210, cert. den. 355 U.S. 965, 78 S.Ct. 558, 2 L.Ed.2d 541; State v. O'Meara, 190 Iowa 613, 625, 177 N.W. 563; Wharton's Criminal Evidence, Twelfth Ed., sections 201--205, pages 404--423; Underhill's Criminal Evidence, Fifth Ed., section 373, page 919; 22A C.J.S. Criminal Law sections 625--628, pages 460--477; and 29 Am.Jur.2d, Evidence, sections 278--281, pages 328--331.

III. Furthermore, evidence relating to offenses other than that charged, which has a legitimate bearing on any point in issue, is admissible if it tends to establish, (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme or system or criminal activity embracing the commission of two or more crimes so related that proof of one tends to prove the other; and (5) identity of the person charged with commission of the crime. State v. Brown, 253 Iowa 658, 667--668, 113 N.W.2d 286, and State v. McCutchan, 219 Iowa 1029, 1046--1047, 259 N.W. 23. See also Spencer v. Texas, 385 U.S. 554, 560--561, 87 S.Ct. 648, 642, 17 L.Ed.2d 606; State v. Hill, 258 Iowa 932, 937--938, 140 N.W.2d 731; and Jones on Evidence, Fourth Ed., sections 173--175, pages 305--308.

The admissibility of any such evidence rests largely in trial court's discretion. State v. Anderson, Iowa, 159 N.W.2d 809, 815, and State v. Bolds, 244 Iowa 278, 282--283, 55 N.W.2d 534, 536.

Of some relevancy here is this statement in State v. Bolds, supra: 'Evidence of other offenses is ordinarily not admissible, but when malice or intent is involved or other transactions tend to show a general scheme or course of conduct on the part of the...