Opinion
November 11, 1924. Opinion on Rehearing June 25, 1925. Rehearing Denied October 2, 1925.
TRIAL: Verdict — Disregard of Instructions. An instruction in a 1 criminal cause that a witness for the State was an accomplice must be obeyed by the jury, even though the court was in error in so instructing.
CRIMINAL LAW: Evidence — Accomplices — Sufficiency of
Corroboration. part other part
CRIMINAL LAW: Evidence — Evidence Unlawfully Obtained. Principle 3, 5 reaffirmed that material testimony is admissible in the trial of a criminal cause, even though such testimony was unlawfully obtained by the State.
CRIMINAL LAW: Evidence — Sufficiency. Whether a record contains 4 sufficient evidence to support a conviction may be materially influenced by the failure of the accused, as a voluntary witness in his own behalf, to deny in part the incriminating evidence of an accomplice.
CRIMINAL LAW: Evidence — Accomplices — Corroboration As to
Exhibits.
CRIMINAL LAW: Evidence — Best Evidence — Telegrams. The 7 telegram which a party receives will be deemed the original when there is no showing that a written message was delivered to the company at the point of sending; and in case of the loss of such delivered telegram, a copy thereof is receivable in evidence when material.
CRIMINAL LAW: Evidence — Accomplices — Permissible
Corroboration.
APPEAL AND ERROR: Assignment of Errors — Additional Assignment
on Rehearing.
Headnote 1: 16 C.J. p. 921. Headnote 2: 16 C.J. pp. 704, 712. Headnote 3: 16 C.J. p. 570. Headnote 4: 16 C.J. p. 540. Headnote 5: 16 C.J. p. 570. Headnote 6: 16 C.J. p. 704. Headnote 7: 16 C.J. p. 616. Headnote 8: 16 C.J. p. 703. Headnote 9: 17 C.J. p. 199.
Appeal from Polk District Court. — JOSEPH E. MEYER, Judge.
THE defendant was convicted of the crime of receiving stolen property. From the judgment entered upon a verdict of guilty, he appeals. — Affirmed.
J.A. Dyer and Scott M. Ladd, for appellant.
Ben J. Gibson, Attorney-general, Maxwell A. O'Brien, Assistant Attorney-general, and Vernon R. Seeburger, County Attorney, for appellee.
The record has been carefully re-examined in the light of the argument upon resubmission.
There was testimony from two witnesses, Van Cleve and Jones, which, if sufficiently corroborated, and believed by the jury, was ample to sustain the verdict. The trial court instructed that Van Cleve and Jones were accomplices. This 1. TRIAL: instruction was undoubtedly correct as to Jones, verdict: who testified that he changed or obliterated the disregard of number on the engine of the car at appellant's instruc- request; but it might be open to question as to tions. Van Cleve, who testified that he stole the car and delivered it at a place designated by appellant. See State v. Boyd, 195 Iowa 1091. But we have no occasion to consider that question; for, whether right or wrong, the instruction became the law of the case, and the jury was required to consider these witnesses as accomplices. No complaint is made that the court did not properly instruct as to the corroboration required of the testimony of an accomplice, in order to warrant a conviction.
I. The principal question in the case is whether there was sufficient corroboration of the testimony of the accomplices tending to connect the defendant with the commission of the offense charged, to support the verdict.
The testimony of Van Cleve, in brief, was that he was indebted to appellant, who was pressing him for payment; that appellant said that if he (Van Cleve) would steal a car for him, he would pay him $50, and cancel the indebtedness; that 2. CRIMINAL he stole the car in question, a Ford roadster, LAW: in Des Moines, on the evening of May 10, 1921, evidence: and under direction of appellant, drove it to accomplices: appellant's house and left it; that, the next sufficiency morning, he and appellant went to the house, and of Van Cleve took the stolen car, by appellant's corrobo- direction, to what is spoken of in the testimony ration. as the Hull Avenue garage, where he left it; that appellant had given him a key to the garage, and paid him $50 in cash; that, a few days later, appellant told him to leave the state, and suggested that he go to California; that he consented to go to Eldon; that he went to Ottumwa and to Albia, and from the latter place called appellant, who asked him if he was broke, and said he would send him money, which he did by telegraph, to Frank Ford, a name that appellant had suggested he should use; that he returned to Des Moines; that appellant suggested that he go to Los Angeles, and bought a railroad ticket and gave it to him; that he did not go, and turned the ticket over to an officer; that later, appellant again asked him to go to California, and took him to Ames, where he purchased a ticket for him to San Diego, which Van Cleve signed in the name of S. Hudson; that he did not go to California, and turned this ticket also over to the officers. Van Cleve testified that he received the money at Albia about the middle of June, 1921. The ticket to Los Angeles appears to have been dated June 30, 1921, and the one to San Diego, October 2, 1921. Both tickets were in evidence.
The appellant, as a witness, denied buying the ticket to San Diego, but did not deny that he purchased a ticket to Los Angeles and gave it to Van Cleve, and claimed that he did so to assist Van Cleve in some trouble with a woman, and to have him look for a car upon which appellant had a mortgage.
The stolen car was recovered by the police on June 4, 1921, being found at what is spoken of in the testimony as the Hohn garage; and appellant was arrested on the same day. On the following day, the car was identified by the owner, W.E. Thomas, and his son, as the one stolen on the night of May 10th. W.E. Thomas testified that, about June 18, 1921, appellant called on him at his bank in Norwalk, and said "he wanted to talk about the Ford roadster I said I had stolen; that he had purchased it, and gotten an affidavit from the owner, and it cost him quite a bit of money to fix it up, and he didn't like to lose it. Wanted to know if I was sure of the identity of the car, and I told him yes; and he invited me to his office in Des Moines to talk it over. Said he had it in the garage with a man by the name of Hun."
Appellant's version of this conversation was that, after his arrest, he went to see Thomas, and asked him if he was sure his car was among certain cars taken from appellant; if he could identify his car. He testified that he did not tell Thomas he had bought the car; that he told him his car was not among those taken from appellant's place, but over at Hohn's garage.
Testimony of numerous officers tending to show that the car in question had been at the Hull Avenue garage between the time it was stolen and the time of its recovery, was 3. CRIMINAL stricken from the record, on the ground that the LAW: evidence was procured by illegal searches, evidence: notwithstanding the holding of this court in the evidence cases of State v. Tonn, 195 Iowa 94, and State unlawfully v. Rowley, 197 Iowa 977. But again, the ruling obtained. became the law of the case, and the excluded testimony is not to be considered.
The Hull Avenue garage was an isolated building, with no artificial light, and with the windows barricaded or darkened; and there was testimony, aside from that of the alleged accomplices, that it was rented by the appellant. Testimony of one of the officers remained in the record, to the effect that, between May 17th and 20th, he saw a man in the garage, working on a Ford roadster. The car in question, at the time it was recovered, had had the engine number obliterated or changed, the tires changed, the radiator changed, and the rear fenders removed, and it had been painted red.
Van Cleve's mother testified, in substance, that appellant frequently called her by telephone, and came to the house, inquiring about Van Cleve; that he said they were both in trouble, and that he would buy the boy a ticket to California; and that she thought this was about the time appellant was arrested.
J.A. Brophy testified that, while he was operating a private detective agency in Des Moines, the appellant, in company with one Willets, came to his office, in the fall of 1921, and said that Van Cleve was to be a witness against him, and that he had bought him a ticket to California, and that Van Cleve had turned the ticket over to one of the police officers; that he wanted to "set" an automobile, and have Van Cleve and Willets steal it and bring it to their place, and proposed that Brophy was to be "planted" there, and that, when Van Cleve came up, he was not to make any arrests, but to call Van Cleve's name, and let him get away; that he would let Van Cleve get away, rather than stand a five-year sentence for stealing automobiles; that he said there was money in it; and that he came to the office several times, and that this was the subject of the conversation each time. Brophy's wife testified that appellant came to the office several times, inquiring for Brophy. The appellant testified that Brophy sent Willets to him, and made the proposition, which he refused to accept. Willets was not a witness.
The statute, Section 5489, Code of 1897 (Section 13901, Code of 1924), provides:
"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 show the commission of the offense or the circumstances thereof."
We have frequently held that the corroboration need not be as to every material fact testified to by an accomplice; that the requirements of the statute are met if the accomplice is corroborated in some material fact tending to connect the defendant with the commission of the offense. State v. Allen, 57 Iowa 431; State v. Hall, 97 Iowa 400; State v. Dorsey, 154 Iowa 298 ; State v. Patten, 191 Iowa 639; State v. Christie, 193 Iowa 482; State v. Seitz, 194 Iowa 1057.
If there be any corroborating testimony, as a general rule, the question of its weight and sufficiency is for the jury. State v. Miller, 65 Iowa 60; State v. Dietz, 67 Iowa 220; State v. Van Winkle, 80 Iowa 15; State v. Dorsey, supra; State v. Patten, supra.
The essential elements of the offense with which the appellant was charged, were that he bought or received stolen property, knowing that it had been stolen. Testimony of his admission that he bought the car and had it in the "Hun" (Hohn) garage, where it was found by the officers, altered in the manner described, and that a car of that description was previously seen in the Hull Avenue garage, of which appellant had control, under circumstances tending to show an effort to conceal it, and that work was being done on it, and that appellant, after his arrest upon the charge of receiving the stolen car, made persistent efforts to get Van Cleve beyond the reach of a subpoena, tended to corroborate the testimony of Van Cleve that appellant received the car, knowing it to have been stolen, and therefore tended to connect him with the commission of the offense.
II. As to the sufficiency of the evidence to sustain the conviction, aside from the question of corroboration of the accomplices, it is a significant fact that, while appellant was a witness on his own behalf, and entered 4. CRIMINAL vigorous denials of the testimony of witnesses LAW: for the State upon certain collateral matters, evidence: such as the purchase of the ticket to San Diego, sufficiency. the conversation with Wilson, and the transaction with Brophy, he did not deny, as a witness, that he received the car from Van Cleve under the circumstances testified to by the latter; that it was in the Hull Avenue garage; that that garage was under his control; and that he procured Jones to obliterate the engine number, the day after the car was stolen, and to remove the tires, a few days later. The question of the credibility of the witnesses was for the jury. We are of the opinion that the verdict finds sufficient support in the evidence.
III. Complaint is made of the admission in evidence of a 5. CRIMINAL key to the Hull Avenue garage, that Van Cleve LAW: testified appellant gave him at the time he took evidence: the stolen car there, and that was subsequently evidence taken from another person found at the garage by unlawfully the officers. As we understand the objection, it obtained. goes to the manner in which the State came into possession of the key. The complaint is without merit. State v. Tonn, supra; State v. Rowley, supra.
IV. Error is assigned on the admission in evidence of the railroad ticket to San Diego, which Van Cleve testified appellant purchased and gave to him at Ames. The complaint is predicated upon the idea, upon which stress was laid 6. CRIMINAL throughout the argument for appellant upon the LAW: original submission of the case, that, since the evidence: railroad agent who sold the ticket did not accomplices: positively identify appellant as the purchaser, corrobo- there was no corroboration of Van Cleve at this ration as to point, and the ticket was therefore exhibits. inadmissible. The statute does not require that no statement of fact by an accomplice can be accepted as true, or even received in evidence, unless corroborated. It is not necessary that such corroboration extend to every detail or item of evidence given or produced by the accomplice, to admit of its acceptance as true by the jury, — much less its introduction in evidence. See authorities cited above.
V. It is insisted that the court erroneously admitted in evidence a copy of a telegram by means of which Van Cleve testified he received money from appellant when at Albia, and it is said that the original telegram delivered to 7. CRIMINAL the telegraph company for transmission would LAW: have been the best evidence. It does not appear evidence: that any written message was delivered to the best telegraph company at Des Moines for evidence: transmission. In the absence of such a showing, telegrams. the telegram as received is the original writing. Bank v. Richardson, 47 N.C. 109. But even where a written message is delivered for transmission, it is not always true that it is to be considered the original. It has been held to depend upon whether the telegraph company was the agent of the sender or the recipient. 22 Corpus Juris 1019, 1020. Lyons Lbr. Co. v. Stewart, 147 Ky. 653 (145 S.W. 376). Assuming that the telegram was received by Van Cleve, it, so far as appears, was the original, and its loss is sufficiently shown to render admissible what the witness testified was a copy. But the copy is not in the record. It appears, so far as the record discloses, to have been nothing more than a means of transmitting money to Van Cleve by telegraph. If it was merely the writing out of a telegraphic order from the operator or office at Des Moines to the operator at Albia to pay money to Frank Ford, — the name Van Cleve was using, — there is no reason to infer that there was any other or original writing.
Van Cleve testified that he had arranged with appellant to use the name Frank Ford; that he communicated with the appellant by telephone or telegraph from Albia; and that appellant sent him money there in that name. Error was not 8. CRIMINAL assigned, on the first submission, on the LAW: admission of this testimony, but only on the evidence: admission of the copy of the telegram. The order accomplices: or telegram, on the strength of which the money permissible was paid to him, tended to corroborate him as to corrobo- the fact that he received money at that time and ration. place in that name. That the money was paid to him under a false name which appellant had suggested he should use, was sufficient, in connection with the testimony that he was communicating with appellant, who said he would send him money, to make it admissible as against appellant. Of course, since the whole transaction was shown by the testimony of Van Cleve only, it could not, in any event, be considered as corroboration required by the statute, tending to connect the appellant with the commission of the offense; but the State was entitled to corroborate Van Cleve's testimony, even though the corroboration did not tend to show appellant's connection with the crime charged, and was entitled to show appellant's acts by the accomplice, although such testimony, without the required corroboration, would not warrant a conviction. Were we in doubt as to the admissibility of the copy of the telegram, we would be constrained to say, in view of the fact that the copy is not in the record, and that Van Cleve testified to his communication with appellant and the receipt of money from him as the result of such communication, that no prejudice resulted from its admission. Appellant, as a witness, did not deny the transaction, or the sending of money to Van Cleve at Albia.
VI. Numerous alleged errors not relied upon on the original submission are now urged upon our attention. It is well settled that a new case cannot be made on a petition for rehearing, and that matters cannot be then insisted upon that 9. APPEAL AND were not presented on the original submission. ERROR: Hintrager v. Hennessy, 46 Iowa 600; Mann v. S.C. assignment P.R. Co., 46 Iowa 637; Long v. Garey Inv. Co., of errors: 135 Iowa 398. It is due to distinguished counsel additional to say that these matters are presented, not so assignment much as in themselves requiring a reversal, as on that, it is said, they show that appellant did rehearing. not have a fair trial. They relate to questions arising on the introduction of testimony. Our re-examination of the record leaves the impression that, while there was no error resulting in prejudice to appellant, the State was deprived of the benefit of testimony that, under our decisions, was admissible.
The testimony of Van Cleve and Jones is severely criticized, as is also the conduct of the officers of the law. It is admitted by Van Cleve that, after he turned the stolen car over to appellant, he informed the officers, and kept them informed of appellant's subsequent efforts to get him out of the state. These matters, and many others brought to our attention, were all before the jury; and it suffices to say here that we find nothing in the record requiring us to hold that the verdict is not supported by the evidence, or that it was the result of passion or prejudice.
The judgment is — Affirmed.
FAVILLE, C.J., and EVANS, STEVENS, ARTHUR, and De GRAFF, JJ., concur.