192 Iowa 636 | Iowa | 1921
As to this last proposition, we may remark, in passing, that the instructions given by the trial court ai’e not before us, so that we do not know whether the court instructed the jury that it was or was not necessary to show such knowledge. The statute does not seem to require it. It is contended by the State that it is not a necessary element to be negatived by the State. In the absence of the instructions, and for the further reason that we think that, under the evidence, the possession of defendant of such a car, so mutilated, was not innocent, and that the jury could have found that she did have knowledge, we deem it unnecessary to pass upon the question of law as to whether it is necessary to show knowledge.
1. The letter was admitted in evidence near the close of the State’s evidence. At the close of all the evidence, defendant moved the court to strike the letter from the record and withdraw it from the jury, which motion was overruled. Mr. McKee, the sheriff, testified that he had seen the handwriting of defendant, and was acquainted with it to some extent; that the writing in the letter looked like the handwriting of defendant. But he afterwards testified that he had none of the defendant’s handwriting in his possession; that he never saw her write anything ; that he did not see her write the poem on the wall of the jail; that he saw some letters with the address on the envelope; that he never compared any of the envelopes with the writing on the wall. The defense contends that the mental comparison, as they put it, by the sheriff, of the writing in the letter with the writing on the jail wall, together with his evidence, was not sufficient to admit the letter in evidence.
The claim is that the letter in question was written while defendant was in jail at Atlantic, in Cass County, early in September. It is dated September 7, 1920. She was confined in the jail at Atlantic from September 3d to the 11th. So far, the
It appears that the ear was in the possession of the sheriff at Winterset at that time. Defendant had been arrested for having the car in her possession at the town of Earlham, in Madison County.
Other matters of a personal nature, such as would be likely • to pass between a husband and wife, and between this defendant and her husband, are referred to in the letter. The letter refers to matters which were known only to the defendant, and relates to subjects closely akin to the facts in this case, which facts were known only to the defendant, and which in themselves tend strongly to sIioav that the letter was either written by her or dictated by her. Another circumstance in the letter not before mentioned is that it refers to a possible arrest in Madison County, Iowa, which arrest was not made until some time later. It is
‘ ‘ Q. And to that offense did this Jim Sally plead guilty 1 ’ ’
Over objection, witness answered that Sally did; that witness saw the Ford automobile, and saw that the numbers had been fooled with. Witness Wright also testified, over objection,
“You and Tedd wants to be awful careful, as the Carroll sheriff has notified all these little towns to look out for you; there were five sheriffs and three deputies at Earlham. It looked like a coppers’ reunion, so whatever you do be careful.”
Defendant’s letter itself refers to the fact that Sally pleaded
“I want to thank you and Teddy from the bottom of my heart for all favors rendered Jim and I. poor Kid had to plead guilty to save me. think we can get him paroled in six months * * * ITe was so anxious to help me get a bank roll so I could buy me a rooming house but it was not to be so. * * * Wanted Jim to go on, but he would not leave me. we were in Omaha at 2 o’clock the same day you left. * * * Dell left for Kerney to raise more money and affidavits for Jim B of E is with her he has been here since monday he tried to buy the P. Q. off. from Jim but he woulden’t cop. * * * I am certainly heartsick for Jim * * * court sets the 21st of this month but havent heard when we will be tried. * * * Jim is crazy over going up but he is game laughs and sings as though he is going to a picnic poor kid I got him away once and in trying to get me a lawyer he got grabed. I would of gotten out of it all right if they hadnent of got him then they rapped to my monicker aiid the lice remembered Carroll so the Sheriff came down so I had to admit it so I think they are holding me now more to see if you turn up so you want to be careful more so now than ever before. * * * The P. A. here said I was the bail em out kid but once I got in the gang ducked, they found a file and one of your old bugs in the Buick. but I got all of Jims kit and thru them in an old doniker and two new licences some other louse chump will pay for all this by and by. * * # gjs succeeds in raising the bonds I look for another pinch from Winterset as they have the Buick there and understand they have warrants from there. * * * I guess Alice Epos can stand it. * * * When I fall I will fall hard and with my boots on too.”
It will be seen from all the circumstances detailed that the defendant and others — at least, she and Jim Sally — were closely associated in handling stolen cars and ears with changed numbers; that they appeared together with the two cars, one of which, the Buick, was a stolen car, with changed numbers; that she and Sally were charged with having stolen the Ford car, the numbers of which were also changed; that she knew that Sally had pleaded guilty to the larceny of the Ford ear, with
It is contended by the State that the plea of guilty by Sally to the offense of which they were both at that time charged is a connecting chain extending from the time the two parties arrived at Earlham until they were placed in jail in Atlantic, charged with the offense of stealing a Ford car, the numbers of which, as well as the numbers on the Buick car, had been changed; that the evidence was admissible in connecting Collins, alias Sally, and the defendant, to show the history of the entire transaction connected with the two automobiles. We are inclined to think that this is so. But however it may be, we think the error was without prejudice, because the defendant had herself, in her letter, stated the same thing, as testified to by the sheriff; and the evidence clearly shows, and concededly so, that defendant was in possession of the automobile in question in the mutilated condition, as charged in the indictment, and as condemned by the statute.
3. If it be necessary to show that defendant had knowledge that the numbers on the Buick car were changed, the evidence was sufficient to justify a finding by the jury, if the instructions required such a finding, that defendant’s possession of the Buick ear in question was not innocent, and that she did have knowledge. If the defendant, or the defendant with Collins, alias Sally, or they with others, as is evident from the record, were associated together in the business of handling stolen and mutilated cars, as was the case with the Buick at least, it would be but natural to change the numbers, to avoid detection; and it would be difficult, under such circumstances, for defendant to secure the certificate required by the statute, to show the reasons for such change of numbers. Some of the circumstances before referred to tend strongly to show that her possession of the Buick car, in the condition in which it was found, was not innocent. True, she testifies as a witness that she did not know, and that no one ever told her, that the numbers had been changed or tampered with; but there are other circumstances in the case, in addition to those before enumerated, tending to show knowledge.
“Defendant told me she had more money in the car than her husband. I did not tell Mrs. Randolph that the numbers on the car 'had been changed or tampered with; I told her it was my opinion they had been. Before I directed that the car be turned over to Mrs. Randolph, I got a report from the examination that the car was all right. I told her that the chief had been suspicious as to whether the car was all right, and he had a mechanic examine it, and that, in spite of the discrepancy and the serial number, one being 8 and the other 9, that the mechanic thought the car was all right. The chief asked me what he would do, and I advised him to let her take the car, after she had convinced me that she was Randolph’s wife.”
The defendant testifies that, after she got the car at Fort Dodge, she drove it home to De Witt, Nebraska, and had it in her possession until it was taken again at Earlham. It appears, then, without question that the car turned over to defendant at Fort Dodge in August was the same car which she had at Earlham about September 2d. Before the last named date, she had been told by the attorney that, in his opinion, the numbers had been changed, and that the chief of police was suspicious about it; and it appears that there was, in fact, some question about the figures 8 and 9. These circumstances would clearly tend to show knowledge on her part, although it is true that she sue-
‘ ‘ I registered it. Mr. Bandolph registered the car in Wisconsin. We had a misunderstanding at Clear Lake, when I went home, and the next time I saw the car was at Fort Dodge. ’ ’
She says further that she was called to Carroll, Iowa, by her husband to help him, which she did by furnishing him money for bail.
It is contended by the State that her explanation of her possession of the Buick car and of the various registrations is inconsistent and unsatisfactory. Another circumstance relied upon is that defendant told .the sheriff that the Buick car had been purchased from McCarty, about May ly 1920. She produced a bill of sale from McCarty to William Bandolph, of Madison, Wisconsin, dated May 1, 1920. It does not appear to have been acknowledged or recorded. At the end of the bill is the following: “Attest: F. B. Gosney, Notary Public. (Seal.)” The bill of sale is somewhat out of the ordinary, and may have been secured for purposes of the defense, as the two new licenses which defendant says in her letter she secured, when she says, “I got all of Jim’s kit and threw them in an old doniker and two new licenses.” But the significant fact about the bill of sale dated May 1st is that this was before the Buick car in question was stolen at Omaha on May 3d, as testified to by the State’s witnesses, and it is without dispute. Another circumstance relied upon by the State is that the defendant had the car registered in Story County, Iowa, in her own name; whereas it had been
Without further discussion, we think there is no prejudicial error, and the judgment is, therefore, — Affirmed.