State v. Brown

• Citation: 69 N.W. 277,100 Iowa 50
• Parties: STATE v. BROWN.
• Decision Date: 09 December 1896
• Court: United States State Supreme Court of Iowa

100 Iowa 50

69 N.W. 277

STATE

v.BROWN.

Supreme Court of Iowa.

Dec. 9, 1896.

Appeal from district court, Pottawattamie county; N. W. Macey, Judge.

Indictment for larceny. Verdict of guilty, and a judgment, from which the defendant appealed. Affirmed.C. H. Converse, for appellant.

Milton Remley, Atty. Gen., and Jesse A. Miller, for the State.

GRANGER, J.

1. The larceny charged was of eight hogs, on the 25th day of March, 1894. A great number of objections are presented or suggested as to the admission and exclusion of evidence. The objections are based on appellant's abstract. An amendment to the abstract by the state, which is sustained by the transcript, and is to be taken as true, shows that the objections are largely based on misapprehensions of the record and the facts disclosed thereby. Most of the questions as to the evidence are in no sense argued, but, as we have said, only suggested; and, in view of the record, we may dispose of them in a general way, after a particular notice of two or three. The hogs charged to have been stolen were the property of one Hacket, and he was the first witness for the state. His direct testimony was as to the missing of the hogs from his pen or pasture. On cross-examination he was asked as to his having trouble, or a personal encounter, with the defendant, and, under objection that the question was immaterial, and not cross-examination, it was excluded. It is merely said, in argument, that the ruling “was error prejudicial to defendant.” It was not cross-examination, for the reason that, in his direct testimony, he had in no way referred to the defendant as having taken the hogs. Had the evidence closed before the cross-examination in question commenced, there would not have been a word of evidence to implicate any one in the taking of the hogs, and hence the question, at the time of the ruling, was neither proper cross-examination nor material, and the ruling was not erroneous.

2. At the commencement of the examination of the same witness the following appears: “Have lived in Center township since 1884; farm; buy and sell stock. In 1894 my hogs were kept in pen. Had 98. Mr. Saunders, County Attorney: Now, what do you say about any hogs being missing at any time during that month? A. Why, after the first six were got back, along about the last of March we missed a few hogs, then commenced to count, and were eight short. Q. * * * What time in March was this that you missed them? A. Well, it was-- Q. Now, wait; when did you get those back that you spoke about? Converse: That is objected to as immaterial. (Overruled. Defendant excepts.) A. Why, we got them back the 20th of March. Q. Now, when did you miss the eight hogs?” The answer to the last question was “Along about the 27th or 28th.” Complaint is made of the ruling permitting the witness to state when he got the six hogs back. The evidence was merely to fix the time that the eight hogs in question were missing. For that purpose it was proper, and there could have been no prejudice from its admission. The same witness fixed the value of the eight hogs at $80. On cross-examination he was asked if he did not, in a suit commenced to recover their value, place the amount at $120, and, under objection, the question was excluded. There was no objection to his stating what he had said the value was, but only to his stating the amount he had claimed in a suit for their value. There was no error. The court was evidently governed by the thought that, in a suit for recovery, the amount claimed in the pleadings is not necessarily what is thought to be the actual value or damage; but, as the recovery cannot exceed the amount claimed, the claim is placed at a figure so great as to surely meet the evidence, without an attempt at accuracy. Such a license, in pleadings, has something of recognition in our law, wherein it is provided that the verification of pleadings shall not apply to the amount claimed, except in actions founded on contract for the payment of money only. Code, § 2678. It is urged that defendant should have been permitted to show the difference between the amount testified to on this trial and that claimed in the suit for recovery as a means of impeachment, but we think not, for the reasons we have stated.

3. One Edwin Bird seems to have been a confederate in the crime charged against defendant. He was a witness for the state, and the following appears in his cross-examination: “I am now living in the Avoca jail. Have been living there a little over two months. I am not engaged in any business. Have been working a little since last March. Worked for the defendant's father all last summer. Have been convicted of felony, and served a term in the penitentiary. Q. Are you the same Edwin Bird that was arrested for the burglary of John Rose's? Saunders: That is objected to as incompetent, immaterial, and not proper cross-examination. (Sustained as incompetent.) Q. How many times have you told this same story, Edwin, that you are...