Hackett v. Freeman

• Decision Date: 18 October 1897
• Citation: 72 N.W. 528,103 Iowa 296
• Parties: RICHARD HACKETT, Appellant, v. FREEMAN & GRAVES, et al
• Court: Iowa Supreme Court

72 N.W. 528

103 Iowa 296

RICHARD HACKETT, Appellant, v. FREEMAN & GRAVES, et al

Supreme Court of Iowa, Des Moines

October 18, 1897

Appeal from Pottawattamie District Court, at Avoca.--HON. W. R GREEN, Judge.

ACTION at law to recover the value of eight hogs alleged to have been taken from the plaintiff wrongfully, and converted by the defendants to their own use. There was a trial by jury and a verdict and judgment for the defendants. The plaintiff appeals.

Reversed.

Benjamin & Preston for appellant.

Turner & Cullison for appellees.

OPINION

ROBINSON, J.

The defendants are the co-partnership of Freeman & Graves, and W H. Freeman and Henry Graves, the partners who compose the firm. The plaintiff claims that in the latter part of March in the year 1894 eight hogs which he had were stolen from him and sold to the defendants, and that the defendants received the hogs, and converted them to their own use. This action is brought to recover the value of the hogs.

I. Edwin Bird testified that he and G. A. Brown stole the hogs in question from the plaintiff about 11 o'clock at night, and drove them to Brown's place, where they were at once loaded into wagons, and that Brown started with them for Oakland early the next morning. The defendant Graves admits that he purchased of Brown, in Oakland, eight hogs, a little after sunrise the next morning. Bird also testified that, before the hogs were taken Brown told him that he had arranged with Graves to take all the hogs he could get from the plaintiff. The district court admitted that testimony to show the arrangement between Bird and Brown, but not as binding on Graves, and of that the plaintiff complains. Bird further testified that he did not go with the hogs to Oakland, but that he met Brown at that place about 11 o'clock of the morning the hogs were taken there, and that Brown said that he had sold them to Graves. The court sustained an objection to that testimony, and of that ruling the plaintiff also complains. We think that both rulings were correct. The statements of Brown made in the absence and without the knowledge of Graves were not evidence against him. Those testified to were not made at the time of the taking and selling. The first one was made before the enterprise is said to have been commenced, and the last one was made after it had closed. Therefore, neither was a part of the res gestae. It is claimed that there was evidence of a conspiracy, to which Bird, Brown, and Graves were parties, and that the statements were admissible as the declarations of a co-conspirator. We doubt there having been any evidence of a conspiracy, competent as against the defendants, and there was certainly none at the time the rulings in question were made. Moreover, the statements shown were not made during the existence of the alleged conspiracy, and in aid of the common design. The court might well have said that the statements in question were not binding on any of the defendants, but its failure to do so, and its limiting their effect to Graves alone, could not have prejudiced the plaintiff.

II. Brown testified for the defendants that the hogs he sold were his own. On cross-examination he testified that he did not think that he had ever been convicted for a felony, and, when asked if he knew, answered in the negative. The plaintiff offered in evidence records of the district court of Pottawattamie county, which showed that Brown had been tried for the crime of larceny, found guilty by the jury, and adjudged to be imprisoned in the state penitentiary at Fort Madison, at hard labor, for the term of two years, and to pay the costs of the prosecution. It also appeared that Brown had taken an appeal from the judgment, and filed an appeal bond. The offered records were excluded by the court, and we are asked to review that ruling. Formerly persons rendered infamous by reason of the commission of heinous offenses were incompetent to testify as witnesses. Under the statutes of this state, they are competent if of sufficient capacity to understand the obligation of an oath, but "facts which have heretofore caused the exclusion of testimony may still be shown for the purpose of lessening its credibility." Section 3648 of the Code of 1873 was enacted in aid of the change in the law thus made, and is as follows: "A witness may be interrogated as to his previous conviction for a felony. But no other proof of such conviction is competent except the record thereof." It is the theory of the defendant that the trial, verdict, and judgment of the district court cannot be regarded as a conviction, within the meaning of the statute, while the appeal is pending. The word "conviction," as applied to criminal offenses, has different meanings. A man may be self-convicted by confession, or he may be convicted by the verdict of a jury before judgment. Thus, in Commonwealth v. Lockwood, 109 Mass. 323, it is said "The ordinary legal meaning of 'conviction,' when used to designate a particular stage of a criminal prosecution triable by a jury, is the confession of the accused in open court, or the verdict returned against him by the jury, which ascertains and publishes the fact of his guilt, while 'judgmen...