*1 ¿84 Aubrey appellant. Iowa, appellee, Daves, W. 52013.
No.
September 20, 1966. for Jerry Leif, City, Alan R. of L. Lovelace and both Iowa appellant. Attorney General, Bennett, Don R. Scalise,
Lawrence E. Attorney General, Boyle, County Attorney, Daniel W. Assistant County Attorney, W. Assistant of Johnson Jansen, and Robert appellee. for County, larceny of J. Defendant convicted
Stuart, appealed judgment rulings has nighttime. He to set motion verdict motion aside directed sufficiency question trial. The is grant a new sole verdict of the evidence. support a claim insufficient evidence to
On of convic light in the tion, view the evidence most favorable to we guilt of the trier fact is finding binding State. are it is without substantial support we satisfied
us unless against clearly weight is or thereof. State v. the evidence 920, 134 863, 865, 921; 257 Iowa N.W.2d Stodola, State v. Pof 552, 554, 585, 74 586; 247 Iowa N.W.2d fenbarger, State v. 531, 532, 210, Iowa 530, 211; 249 86 N.W.2d Harless, State v. 64, 59, 63, 432, Iowa 120 Frink, 255 N.W.2d 435.
However,
prove
the State must
all essential elements
Mabbitt,
v.
charged.
crime
State
challenged. To aid or abet means to assent to an act
toor
lend
approval
countenance
participation
either
active
in it or
by some
encouraging
Fonza,
630,
manner
it.
v.
254
State
Iowa
118
548;
N.W.2d
248
Smith,
603, 608,
State v.
Iowa
81 N.W.2d
657, 660;
Storms,
655, 657,
State v.
233
10
53,
Iowa
N.W.2d
54.
Knowledge
aiding
is
essential element
abetting.
State
Kneedy,
21, 28,
232
611,
Iowa
3
615;
v. Mc
Carty,
173,
210
230
177,
379,
Iowa
N.W.
person
381.
Guilt of
charged
aiding
and abetting must
upon
be determined
part
facts which show his
in the crime and
depend
does
degree
guilt.
Bittner,
on another’s
111,
State v.
209
Iowa
601;
227
Canalle,
N.W.
State v
1177, 221 N.W.
847;
Smith,
1, 4,
Iowa
Mere
at the scene of a crime
enough
is not
prove defendant committed the offense or that he did aid and
Mabbitt,
abet its commission. State v.
1063, 1067,
*3
528;
Any evidence, direct, circumstantial or must be suffi a fair guilt. cient raise inference of It generate must some thing suspicion, than speculation, more conjecture. Myers, 274, 253 Iowa 111 271, 660, 662; State v. Saling, 563, Iowa 552, 177 159 255, 259; N.W. State v. Whisler, 1216, 1226, 525, 3 N.W.2d 530.
With these rules in mind we now turn to the evidence. February 1965 operator the of the bus depot re ported money a City loss of to the police. When again missing 5, March police the up set plan a of surveil nights lance. On the of March 6 and officerswere stationed' parked along in a bus the west side the bus depot in position a from which the interior the station could be observed.
The is located in the south or rear half of Burkley the building. open Hotel Two waiting doors the room onto an alley along which runs south the end building. the There are three of six or rows seven chairs facing south. At the north end waiting large is a opening leading room into the hotel and Campus Grill. The ticket counter in which the cash drawers There were room. to the end was also were located which were secured the counter drawers behind rows-of and down the counter top placing pipes through at bottom. They padlocked drawers. a through window bus, could look sitting in the officer, counter, first two money drawers, the entire see rooms. and ladies’ rest the men’s doors to of chairs rows the first as to his observations testified Snider Detective night of surveillance: Daves, and Mr. Wells defendant, Mr.
“I observed the the rest walking through and entered shortly after 3:00 the rest room entered Shortly thereafter Mr. room. They remained there a short They together. were not area. steps behind was few came out
and Wells Daves my I maintained surveillance They place. Klepke. then left the 6th, but I did observe morning on the until six morning. again that Klepke, Daves or Wells parties, of the three evening March next “I surveillance continued 11:30, Daves, p.m. At about Wells and starting at about 6th, together and Daves sat the bus area Klepke entered row. sat these chairs chairs in back in the down dropped counter and he Klepke was around behind the while up paper the area of the coins. He was1 picked down Shortly just left, minutes and then left. after few there for Campus from the hotel or Grill area walked into someone period, Daves and During this Wells were seated in rest room. looking facing south, but Daves was back toward the the chairs looking straight ahead. Mr. Klepke area. Wells hotel pretty shortly out fast the counter after he over area, picking up magazine. Wells, Daves had left the counter *4 appear conversing at all at Klepke par did to this and ticular time. Sunday morning, 7th, March
“At 1:30 on about the at Daves stood the north side and walked in. Wells stood them Klepke of the east end the counter. the south side had at and around behind these fellows the counter to past walked the carrying time these two were At this fellows con- drawers. on a turning listening looking way and and ; one one and the versation way they and turned over and looking the other both other the cash Klepke in the counter at drawers. at behind looked I where manipulating the drawers from see Klepke good this for a ten to fifteen minutes. him. remained like place again. 3:30, about the entered the Wells
“At fellows walking only two that I noticed. Wells Klepke and the in the this entered behind counter. over out door spent going down the base the considerable figured unlocking and I up top to the he drawers raising up. the drawers and the bar This at base of locks I thought I should move so left bus started time I to. my place apprehension. As I I entered, enter make standing large southeast corner room. noticed wall, large bay window south from There is which complete parking have changed would vision entire area. I my at my point making apprehension mind at about Spelman, 4:00 I left the bus and called Mr. approximately feel- money ing had taken.” been later night. It was determined been taken that Sunday night surveillance on conducted Officer Raymond White who testified: after I my
“About minutes assumed position, I saw one walk behind the [Klepke] fellow counter. He was alone when he walked the counter he had behind come with two other fellows walking hotel entrance Wells] [defendant * * * waiting area. into the and Wells wandered around “Daves the area people where sit and the coke machine and over walked around but did not at that time. Mr. sit down walked behind the counter stooped picked up down a pamphlet from the area there, the counter where underneath are stored and stood a little bit and read and walked out from behind the counter. 9:30, All three of them at about going out to front the hotel. vigil
“I maintained the same three individuals came back into bus around 10:50. Wells and Daves sat in waiting chairs for the customers and a trip made picked up behind the counter and pamphlet. another Mr. Daves- *5 sitting sitting chair and Mr. Wells was second sitting position. Mr. Daves was third chair in a rather relaxed towards the chair with his face turned kind turned his of and Mr. Wells was of the hotel north, or the entrance towards stayed approximately facing The three sitting south. up picked Mr. during and this time ten minutes and and back out from behind the counter pamphlet walked of, a against the and it while at the front counter read leaned a of, then made second side the counter. south picked up larger pamphlet counter, another trip around the back a and He there few minutes then the walked back out. stood and n they were in the During this time when bus of left. them position they and Daves their remained say- what bit, I unable to hear a little but was talked building and the window of the the bus ing the window as us. were between people and noticed other
“I continued surveillance depot periodically around 11:15 wandering coming people a with buses 12:30 there were lot the way through walked all bus drivers going. One of the a couple walked around to the others the counter behind cash them were near the drawers. one o’clock None of end. morning 8th, all three of the fellows came back in up spread walked to the end of the counter and and Mr. so he stand there newspaper on the end and read a just other two fellows wandered around a newspaper. The few entrance. minutes and
“Klepke reading and was produced standing screwdriver every somebody by, walked would newspaper he wearing coat, paper. pants, at blue black slippers. and brown From the inside socks coat white screwdriver, fingers and iron pocket produced two small (The witness was handed State’s pieces 2) of wire. Exhibit No. fingers’ ‘iron and is picking what is known as used for This is objects places. grasp from small will up several articles securely. you want rather hang article Television proceeded He to walk them. then around technicians use behind pried top the screwdriver on the drawer the counter right-hand that he was series of drawers and it was visible *6 prying fingers. using on the drawer and the-iron high and a six approximately
“The counter is feet Every comfortably footer could lean it with an elbow. somebody by, pocket in bis and put walked he would the stuff fingers hold stick the screwdriver back his shirt and the iron him, appearing reading beside to paper. the Sometimes be fingers pocket would stuff back in his and sometimes be the iron just would them him. standing hold down beside When he was money7drawer, he pushing fingers behind the the steel into ways. actually the that was out I could not drawer see anything leaving during period or the drawer this minutes, quit coming time. 20 After he back to the newspaper just pulled pamphlet standing out and remained in front away prying. put of the drawer and He the screwdriver when by. somebody7 Periodically, people walked would come the or way front and the area walk all through. rest room the [into] During Klepke minutes, first 20 Mr. would move the around to reading area begin newspaper, this, this the but after just reading just stop pamphlet would hold the screw alongside sight. driver of him out He would do this before people my walking through came into view and he was out always “Several sight over there when the people reading walked customers through newspaper walked through. there had he would either the screwdriver [*] * '* go paper back to the hidden, would have the by7 screwdriver they got the time into He view. was behind the counter for building an hour and about left around two At o’clock. 20 approximately about after been there minutes, sight again. and "Wellscame into Daves time, this Mr. standing behind the and had counter the screw He driver his hand. took the screwdriver and stuck it in the pushed up against drawer and and gave counter them both cigarette. The screwdriver was over the top visible of gave cigarette He them a piece counter. a small" paper I' what but was to "determine unable was. talked for by and then the north entrance, minutes left going few continued work the hotel. drawer until about and walked then came back 2:00. Mr. Wells five minutes to they up to the counter both corner and walked around the any Mr. did not have and went into rest room. left came back. He hand time that Wells thing in his the second put the wires underneath his pocket coat put it back room They were in the rest back. shirt before came came back out north a minute or so then machine, just which is As walked the coke entrance. exit, they back toward the both looked
the east I laughed something, but couldn’t hear their drawers and about remarks. night I
“I didn’t them the rest while continued see my surveillance.” Monday morning it was determined ten dollar
On seven *7 bills, with listed were bills six five dollar serial numbers Klepke, in missing. apprehended defendant were Monday City Iowa between four five afternoon. in riding Ivlepke’s
all the front seat ear. Search a revealed fingers in Klepke screwdriver and iron on the fioor the back seat. had with seven ten dollar bills serial numbers which matched left in the Neither nor those on the bills drawer. defendant possession Wells had of the marked bills in their or cash of any kind. say circumstantial. Can
The evidence is we it is sufficient jury every find hypothesis to allow the to rational of innocence negatived required by as Whisler, has been the cases? State v. 525, 527; Sigman, 231 Iowa State v. 220 Iowa 146, 149, 538; Bricker, 297, 306, 261 N.W. 873; Vandewater, reported in 159 N.W. 883, 884. Reports, 176 N.W. jury from which the find
There is evidence could defendant Klepke manipulating Saturday night knew drawers position sticking in to the screwdriver out of see could Sunday night. From this it defendant drawer inferred money attempting get to out knew cash However, knowledge, aiding drawer. while element of enough. hold abetting, is not Cited eases there must be active encouragement in of the act. in participation or We believe fail. respect case must the State’s jury could infer de- which the find from We no evidence in act. participated or any way encouraged fendant actually engage did present while defendant was no time cash drawer. Defend- money extracting act of in the with inno- as consistent waiting room was ant’s conduct testimony from officers’ nothing guilt. cence There is as encouragement of the act can be or participation which active did defendant not return to interesting to note It is inferred. Monday Sunday mornings after room waiting either Only money of the drawer. taken out apparently had Klepke on occasions. The fact these Wells was observed apprehended when after there had no defendant also opportunity to divide the loot tends to plenty been apparently feels any participation. The State defend- negative stating: acting as a lookout ant was however, through far reflect, does not how “The record proceeded men 'find both of these we north entrance each or manage explain stop to odd how it little sight, reading and be out news- operation, have the tools every came the north entrance into time someone paper room.” depot going the rest no more than speculation does This is mere create suspicion participation. jury appears convicted defendant because of his
It close larceny obviously guilty of with one rather than on association encouragement proof participation of his the crime the law. addition charged. previ- This is not authorities 108, 110, *8 Graham, ously v. 17 192. cited see State N.W. stronger Fonza, than those in The facts here are no State v. compelled insufficiency to reverse for supra. We feel of the evidence.-—-Reversed. JJ., Rawlings, Snell,
Thornton, Moore, Mason concur. J., J., J., C. dissent. Garfield, Becker,
Larson, respectfully opinion dissent. J. I there Larson, participation of defendant’s or encour- was sufficient evidence larceny by generate to jury another agement committed
593 no error question trial committed guilt, as to his and the court 1962 jury. 688.1 of the submitting that Section issue to in the commis- Code, provides persons all concerned which that directly act, public offense, sion of commit whether liability commission, subject criminal or its are aid abet by applicable lookout long recognized as us as principals, evidentiary by re- eases, not be unreasonable should disturbed 585, 1094. quirements. 581, 121 96 N.W. Berger, State v. Iowa all from involved in such matters is whether question by the facts and shown and from the circumstances evidence all and the conduct of the evidence, acts the defendant done abetting aiding, in the com- assisting defendant constituted be charged. guilt His or innocence must the crime mission of may permissible inference which upon the facts determined v. tending part to show his therein. State be drawn therefrom Iowa and citations. Kneedy, 232 3 N.W.2d jurisdictions in most that well a common It is established among persons need not two or more to commit crime purpose may but inferred by positive evidence be shown act and surrounding the from defendant’s conduct circumstances and after of, time the commitment of the act. before, at the Kneedy, Brown, 57, 62-64, v. 130 supra; State Iowa 379; Miller, 188, 199, 142 State v. N.W. 394, 401. controversy then, in this is inquiry,
Our sole whether defendant’s acts conduct sufficient raise evidence of another, he, acted as along an that aids or look- inference actually larceny committed the Klepke, involved, who outs participation encouragement inference of and whether association, presence and acts at time. raised we reminded with this review are In connection evidence most favorable to the light State. Rule be construed must Procedure; Miller, supra. 344(f)2, Rules Civil clearly defendant, showed The evidence night associated at observed at were Klepke often larceny where the about bus committed. together waiting during nights in the room seen 7th 8th of March. both *9 p.m. police About 9:50 the of March a officer on 7th ob- Klepke Mr. walk the bus served behind the counter in after had and he come into the room the defendant Mr. said, a pamphlet Wells. He while obtained under the it, counter and read from Wells defendant wandered around left, room but all the did sit A short time later down. going out hotel entrance from which the arrived. all back. p.m. About 10:50 This time three came “Wells and waiting Daves sat in for the chairs customers trip picked up made a pamphlet. behind the counter another sitting Mr. Daves was in chair and Mr. the second Wells was * * sitting sitting in the third chair *. Mr. Daves was kind of turned chair with turned the north, his his face towards hotel, and Mr. towards entrance Wells was sitting- facing They stayed way that approximately to the south.” minutes, Klepke occupied ten himself behind the counter apparently pamphlets. read Daves and conversed, Wells but was they left, witness not hear what said. After persons other coming also out of observed the wait- room, ing only but one bus went driver behind the counter and no one was the cash near drawers. one o’clock the morn- Daves, ing returned. The latter had a news- paper spread which he the end and appeared counter “just to read. The wandered around others a few minutes and Klepke produced entrance.” a screwdriver, fingers iron small pieces two of wire. He walked around behind the counter and pried “with the screwdriver top * * * and it drawer was visible he prying on the iron using fingers.” drawer though As he had some warning, “Every somebody by, walked put would * * * pocket appearing to reading stuff paper.” twenty For minutes “He would people do this before walking- always came view and he into over there read- newspaper or had ing sight the screwdriver out when the through.” Klepke customers walked was behind' the counter and left about hour about two a.m. “At about 20 to two * # #(cid:127) sight Daves again. and Wells came into time, At this standing behind the counter and had the screwdriver *10 drawer it in the and stuck He the screwdriver his hand. took ciga- them both gave and pushed counter up against the top the visible over the was The witness said screwdriver rette”. aWells gave defendant Klepke and that also of the counter they identify. He said not paper which piece small he by to leave appeared and Wells a few minutes and Daves talked shortly and he the north entrance. Wells returned so, and then minute or room, there a went to the rest remained returned that three None of the the north entrance. missing from was night. determined Later it was Substan- for them was instituted. and a search cash drawers surrounding revealed tially, are circumstances these the material charged. criminal offense commitment of the actual testimony move- as to defendant’s Next let us examine the prior to this Klepke and Wells relationships with ments occasion. testimony of and the Wells
By own admission defendant’s than a they roommates, in a hotel less living learn that we were Klepke and they friends of depot, from that were block the bus bought him night, at that he them coffee were often money. testified, they short of Wells “On when were some meals say 7th, of March I’d morning March 6th and the night might depot I have been the bus depot. I was in the bus that I 5th and 6th. was there and if night of the Mr. on the was, generally I Daves was at.” there, Daves was. Wherever City force, Snider, police testified he Officer 5th, extending Friday evening, March into a watch up set him at 3 a.m. Saturday morning, that his observer called Satur- and that possible suspect, he hurried to the day reported depot he observed defendant and After arrived at the scene. waiting room and went walking to the Wells shortly Klepke. remained room, followed rest out, and Wells came and a and Daves few a short time there Klepke. All left the area not seen steps behind night. that again night, March surveillance was commenced at next Daves, p.m. Wells and At 11:30 entered p.m. about together. He said Wells Daves sat down area chairs the back row while was around behind kept. During period
counter in the area where the cash was facing Daves and toward the Wells were in chairs south seated door, looking outside but back toward hotel area Daves was Although appear it did men were entrance. these con- always versing time, Klepke at out behind north person coming counter when a into the area from the appeared. Sunday morning, again about 1:30 March all depot. position
came into the Daves took at the side of the east end side. Klepke of the counter south went around the counter to where the cash drawers were located. *11 testified, carry- The officer “At this time these two fellows were ing conversation, turning listening and looking one one way they way, other looking the other both turned over and looked at in behind at the counter the cash manipulating drawers. the drawers from where I him. good see remained like this for a ten to fifteen minutes.”
At a.m. Klepke again about 3:30 Wells and came Klepke spent working considerable time on the drawers. The depot apprehend officer started to enter the Klepke, but changed mind “standing when he saw Wells in the southeast large bay corner of the had a room” which window the south. Anyone approaching the south entrance could be observed long before entered the room itself. While defendant at timq that by officer, was not seen from Wells’ admissions of their asso- to, it jury ciation above referred seems clear the could find he at protecting was stationed entrance surprise from a visitor from that entrance. The nest morning a check of the missing cash revealed marked cash drawers, prepared another surveillance was for Sunday night. testimony further revealed about 1:30 a.m. on Sunday Klepke getting was seen in his car in the 100 block of Capitol South Street near the bus and that “Mr. Mr. early Daves were in morning they March 8 together.” when the scene It appears further accompanied defendant Wells then Klepke to Muscatine, buying. When Iowa, car to look at wrecked he considered ear, Klepke’s City, apprehended all were returned to war- search previously-obtained and a search of the car under a of the car back seat implements rant on the floor of the revealed depot. It is larceny at the bus used in the like those not know that he did hard to defendant’s contention believe larceny. by Klepke in the presence and their use acts, circum- any evidence of rate it seems me this crime, of, before, at the time associations stances and jury generate question than thereafter, was more sufficient to It charged. in the crime participation of defendant as to the conjecture. suspicion, surmise or more than mere created much only participation, an support not inference of If this does participant a lookout is confession hope conviction of for a decisions accomplice, which under recent testimony aid in an effort to detect to the authorities to furnish little seems of a aid and abet commission crime. those who and convict presence much more than mere circumstances disclose These by an innocent of a crime. Defendant at scene knowledge that another was possessed mere or one stander would be insufficient. State committing crime, which of course 1067, 525, 528; Mabbitt, 630, 635, 118 N.W.2d 551. Fonza there Fonza, 254 Iowa confederacy intent. plan, Although evidence of was no elements, is direct evidence these there there is little here Knowledge in this evidence thereof record. ample circumstantial *12 proof, of direct but we have capable often or intent is seldom proven surrounding circum may inferred from the it be held 21, 28, Kneedy, supra, 611; 232 3 Iowa N.W.2d State v. stances. 748, 749, and 34, citations; 2 N.W.2d Van, 232 Iowa State v. Participation may supra. in criminal intent Miller, be State v. companionship conduct before presence, inferred from 271, 253 Iowa Myers, committed. State v. offense is after the Miller, S., 22 Crim 660; supra; State v. C. J. 275, 111 N.W.2d Law, 88; Jur., 14 Am. Law, 87 and Criminal section sections inal Law, 1, Ed., Criminal Volume Twelfth 830; 91, page Wharton’s 246, 256, 258. sections among persons to commit purpose two or more
A common 598 by evidence, may positive need but be crime not be shown in- the act and surrounding
ferred
the circumstances
from
v.
prior
subsequent
defendant’s conduct
thereto. Callies
640,
State,
370,
157 Neb.
61
which cites
refers to
Kneedy,
approval.
supra,
v.
with
It
generally held,
is
if one be outside of an enclosure watch-
ing
keeping guard
prevent surprise
purpose
to
or for the
felony,
committing
while his confederate is inside
such con-
principal.
to make him a
presence
structive
is sufficient
If all
in
are
for
of a
engaged
plan
crime,
common
the execution
all
of a
part
design,
take
the furtherance
common
all are
principals.
22
S.,
Law,
as
C. J.
Criminal
liable
section
(2) d,
merely witnessing
88
is
it
stated that while
a crime, with-
intervention,
out
person
party
does
make a
to
not
its com-
mission,
duty,
unless his
was a
interference
or unless
non-
his
designed by
operated
him and
interference
as an encourage-
protection
perpetrator,
for the
ment to
when something is
design
encourage, incite,
shown which indicates a
to
or in some
particular
by
manner afford aid or
by-
consent
act
reasonably
regarded
will
be
stander which
as an encouragement
question
protection,
jury
then a
participation
as to his
is
produced.
Storms,
State v.
It was not that defendant actually participated constituting the acts the offense if companion prevent watched order to surprise, knowledge give of which was calculated to additional confidence Klepke. perpetrator, to the actual Mickle, State v.
704, 202 N.W. necessary, 549. It majority as the seem hold, express that the agreement State show an or understand- ing parties, necessary between these nor is it that a common purpose positive shown evidence. may Its existence should be inferred from all the accompanying circumstances doing act; words, preconcert in other a community may purpose be and was shown here the circumstances. depot, Defendant’s activities at the bus and close associa- Klepke before, with of, tions at the shown and after, offense, view inconsistent other reasonable hypothesis. Miller, See State supra, Sigman, *13 and circumstances the facts 538. Under 146, 149, 261 N.W. aas participation evidence, inference an revealed jury submission. required but only permissible was not lookout par inference necessary to raise Every in chain link guilt ap proof of Some substantive ticipation was established. tend establish proven which but, all, facts were above pears, Myers, v. participation. State of active facts the substantive said: “But we 271, 274, supra, 253 Iowa to raise direct, must be sufficient or evidence, circumstantial course, generates evidence which guilt.” Of fair inference conjecture is not suspicion, speculation nothing more than jury, unchallenged under sufficient, trial court and but the challenge. that Al instructions, did meet thought the evidence upon kind must be decided own though of this its each ease a repudi this conviction would be record, I feel that reverse adopted carefully we considered position ation of in the recent case of Kneedy, supra, and followed State supra. Miller, only proof is a failure a crim- It is where there total allegation information, a material support inal case testimony of so weak or doubtful a adduced is character sustained, that a court conviction thereon cannot should guilty. of not direct verdict hold trial did not err in
Therefore, I would court sub- participation jury and affirm to the would mitting issue the conviction. join J., J., this dissent. O. Becker,
Garfield, appellant. Iowa, appellee, Johnson, v. Michael No. 52001.