State v. Wimbush

• Decision Date: 02 May 1967
• Docket Number: No. 52357,52357
• Parties: STATE of Iowa, Appellee, v. James Edward WIMBUSH, Appellant.
• Court: Iowa Supreme Court

Page 653

150 N.W.2d 653

260 Iowa 1262

STATE of Iowa, Appellee, v. James Edward WIMBUSH, Appellant.

No. 52357.

Supreme Court of Iowa.

May 2, 1967.

Henry Wormley, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., David A. Elderkin, Asst. Atty. Gen., and Ray A Fenton, County Atty., Des Moines, for appellee.

MOORE, Justice.

Defendant, James Edward Wimbush, was indicted by the Polk County grand jury for the crime of breaking and entering Washington Irving Junior High School in Des Moines in violation of Code section 708.8, to which he entered a plea of not guilty. On trial to a jury he was found guilty. June 14, 1966, he was sentenced to imprisonment in the Men's Reformatory at Anamosa for a period not to exceed ten years. From this judgment and sentence defendant appeals.

Defendant assigns and argues two propositions for reversal: (1) the evidence was insufficient to establish a jury question and (2) the trial court erred in overruling his objections and giving instruction 10 relating to flight.

I. The rules governing our consideration of a claim of insufficient evidence to support a conviction are not seriously disputed here. Both parties cite the same prior pronouncements by us. We will not let a finding of guilt stand where there is an absence of proof of any essential element of the crime charged. A conviction notwithstanding such absence of proof amounts to a denial of a fair trial. The evidence is to be viewed in the light most favorable to the State. It is the jury's function, not ours, to decide disputed fact questions. A jury's finding of guilt is binding upon us unless we are satisfied it is without substantial support in the evidence or is clearly against the weight thereof. State v. Poffenbarger, 247 Iowa 552, 554, 74 N.W.2d 585, 586; State v. Stodola, 257 Iowa 863, 865, 866, 134 N.W.2d 920, 921, and citations.

In State v. Frink, 255 Iowa 59, 64, 120 N.W.2d 432, 435, we quote this from State v. Miskell, 247 Iowa 678, 686, 687, 73 N.W.2d 36, 41: 'In a criminal action the cause should be submitted to the jury and the court should not direct a verdict of acquittal if there is any substantial evidence reasonably tending to support the charge. * * * the State's evidence, with all reasonable inferences therefrom, must be taken as true and viewed in the light most favorable to the State, and it is necessary to consider only the evidence which tends to support the verdict.'

Any evidence, circumstantial or direct, must be sufficient to raise a fair inference of guilt. It must generate something more than suspicion, speculation or conjecture. State v. Daves, Iowa, 144 N.W.2d 879, 881, and citations.

With these rules in mind we turn to the evidence. George Formaro, a janitor at Washington Irving Junior High School in Des Moines, testified that when he came to work Saturday morning, April 16, 1966 he noticed a window in the southeast corner of the school metal shop was open, the top window pane above the latch had been broken, the latch was unlocked and there was broken glass below the window on the shop floor. He stated all the school windows are closed and locked every night.

Formaro stated across from the open window there is a doorway entering into a small hallway which connects the metal shop with the wood shop. This hallway leads out to the hall of the regular portion of the school building where the other classrooms are located. This particular morning in the middle of the hallway he saw a television set which is kept in the school auditorium. He then checked and found a window pane in the auditorium door was broken. The auditorium is north of the metal shop.

Lacey Spriggs, vice-principal of Washington Irving, testified he went to the school that morning in response to a phone call where he observed the pane broken out of the window in the metal shop and also the one in the auditorium door. It was later discovered two microphones and a transistor radio were missing. Spriggs stated defendant had not been given permission to be in or about the school building.

Detective Charles Welch was called to the school the same morning and observed the two broken windows and the television set which had been moved from the auditorium to the hallway outside the metal shop. He stated more than one pane would have been broken if a rock had been thrown through the metal shop window while it was open. No rock or other such object was found inside the shop.

G. R. Limke, Des Moines identification bureau detective, went to the school that morning and with Welch checked the ground outside the broken metal shop window. He found footprints but none could be measured or photographed. Limke testified he observed a print of a high and narrow heel belonging in his estimation to the same type shoe defendant was wearing when arrested several days later.

Limke testified he examined the television set for fingerprints and lifted a partial palm print from its side. There were fingerprints corresponding with the position of that palm but they could not be identified. He stated when the person carrying the set placed it on the floor he smeared the four fingerprints directly below the palm to the extent they could not be used. He described smears in two areas where he believed the set had been carried. Limke further stated the television set had a slight covering of dust on it and that it appeared to him the dust had been disturbed the evening before.

On April 28, 1966 Limke took two sets of finger and palm prints from defendant. After relating his experience and qualifications he pointed out fourteen points of similarity between defendant's palm print and that taken from the television set. He opined the print found on the set could only be that of defendant. Photographs of both prints were identified and received in evidence.

Des Moines detectives, Arnett Davis and Tom Spencer, on April 28, 1966 went to a Des Moines residence on information defendant was there. As they approached Spencer saw a man standing near the door and then step back into the house. Spencer went to the front and Davis to the back door. When Davis arrived at the back door defendant appeared in the doorway and was asked his name. Defendant replied it was Arthur Ousley and when asked by Davis for identification defendant displayed a draft card for Arthur Ousley.

After being told by a woman at the front door defendant was not there Spencer heard talk and went to the back door. As Spencer came around to the back door he said, 'Hello Jimmie'. Defendant said, 'You are mistaken, my name is Arthur Ousley'. Spencer then said, 'You are Jimmie Wimbush--come out we want to talk to you'.

Davis testified as defendant came out he placed his hand on defendant's arm and led him onto the porch and then Spencer grabbed the other arm and advised defendant he was under arrest and coming to the station. Davis stated defendant then suddenly wrenched free and started to run. Davis ran after him, ordered defendant to stop and fired at him with his pistol. Defendant then stopped, came back and was taken to the police station.

Spencer's testimony differed from that of Davis only as to what happened immediately before defendant broke and ran. Spencer stated he had not taken hold of defendant and had not advised defendant he was under arrest.

We believe this is a fair summary of the record. Defendant offered no evidence.

Applying the stated applicable rules to the record we conclude the evidence of each element of the crime charged was substantial and...