State v. Archibald

• Decision Date: 01 October 1927
• Docket Number: No. 38037.,38037.
• Citation: 215 N.W. 258,204 Iowa 406
• Parties: STATE v. ARCHIBALD.
• Court: Iowa Supreme Court

204 Iowa 406

215 N.W. 258

STATE

v.ARCHIBALD.

No. 38037.

Supreme Court of Iowa.

Oct. 1, 1927.

Appeal from District Court, Appanoose County; E. S. Wells, Judge.

On the 29th day of September, 1925, the grand jury of Appanoose county indicted Cam Archibald for the crime of breaking and entering a certain chicken house. Upon trial to a jury, a verdict of guilty was returned, and thereafter the defendant was committed to Men's Reformatory, at Anamosa, for an indeterminate sentence of ten years at hard labor. Reversed and remanded.C. H. Elgin and Fee & Smith, all of Centerville, for appellant.

Ben J. Gibson, Atty. Gen., and C. W. Howell, Co. Atty., of Centerville, for the State.

KINDIG, J.

The state declares that on the 31st day of July, 1925, a henhouse in Appanoose county, belonging to Paul Caylor, was broken into, and several of the chickens therein kept, and owned by said Paul Caylor and Lee Walker, were stolen and carried away. Defendant, Cam Archibald, and one Otto Whisler were separately indicted for the offense. One hundred thirty-three errors are assigned. We deem it necessary, however, to consider but two. One relates to the district court's refusal to admit certain evidence, and the other pertains to the wrongful admission thereof.

[1] I. Fowls belonging to Caylor and Walker were marked by the use of a punch, in that the web between the toes was perforated and torn, usually leaving “scalloped” appearance. It is contended that the sheriff found some of these kinds at the home of defendant. Contradictory to this allegation, the theory of the defense was that said Archibald and his wife owned poultry, and that they were marked in a similar way, except that the web was removed by scissors which left a clear cut without perforation or fringes. Mrs. Archibald avowed at the trial that she and Mr. Archibald thus used scissors. As a basis for impeachment, this woman was asked if she did not say before the grand jury that shears were employed by her, and said defendant handled the punch. After denial by the witness, members of said jury were called on behalf of the state and testified to the effect that defendant's wife did say, when before said preliminary body, that she marked with “scissors” and he utilized the “punch.” To overcome this contradiction and impeachment, the defendant, by way of surrebuttal, offered to show, through the clerk of said inquisitorial body, that the said jurors were mistaken, and that Mrs. Archibald swore to the same facts before said body as she did at the hearing in question. In harmony with the state's objections, the court refused to permit said clerk to so state, and further declined to admit into the record the minutes of the evidence of Mrs. Archibald, taken in the grand jury room and signed by her. This conduct of the district court is asserted as error. We think the assignment has merit. When warranted by the occasion, the clerk of the grand jury may properly be called to disclose consistent or contradictory evidence given before that body. State v. McPherson, 114 Iowa, 492, 87 N. W. 421. See, also, State v. Hector, 158 Iowa, 664, 138 N. W. 930; Code 1924, § 13725. Under said statutory enactment, statements of a witness before said tribunal have been permitted to be shown at a future trial with the object of disputing and traversing. Wildeboer v. Petersen, 187 Iowa, 1176, 175 N. W. 349. Notice is to be taken of the fact that the reason for the disclosure permitted by said section is “for the purpose of ascertaining whether it [testimony] is consistent. * * *” Discriminating, there is a rule “that, after an attempt is made to impeach a witness by proving that he has made statements out of court inconsistent with his sworn testimony, it is not competent, for the purpose of sustaining him, to prove that at other times he made statements out of court consistent with his statement.” 28 R. C. L. 649, § 233; State v. Porter, 74 Iowa, 623, 38 N. W. 514;Kesselring v. Hummer, 130 Iowa, 145, 106 N. W. 501.

[2] But said doctrine “has no application to evidence offered for the purpose of contradicting impeaching witnesses who say that the first witness made inconsistent statements, when in fact he has not done so.” 28 R. C. L. 649, § 233. Admission of such rebuttal amounts to proper corroboration, and, in the interests of fairness and justice, it is necessary and proper. Doing this cannot be condemned because the trial is thereby tediously prolonged and the field of cumulation entered. Suravitz v. Prudential Insurance Co. of America, 216 Pa. 390, 104 A. 754;People v. Crane, 34 Cal. App. 760, 168 P. 1055;State v. Smith, 144 La. 801, 81 So. 320;Rials et al. v. State, 211 Ala. 615, 101 So. 630;Jordan v. State, 154 Ga. 390, 114 S. E. 349;State v. Manville, 8 Wash. 523, 36 P. 470;State v. Houghton, 45 Or. 110, 75 P. 887;Kennedy v. Commonwealth (Ky.) 109 S. W. 313;Bronson v. Leach, 74 Mich. 713, 42 N. W. 174. See, also, State v. Mims, 36 Or. 315, 61 P. 888.

State v. Houghton, supra, concludes:

“* * * But it [evidence offered and admitted] was with the view of showing that there was no inconsistency in his [witness'] testimony on the two trials, and that the witness called to impeach him was mistaken. For that purpose it was competent.”

[3] Bronson v. Leach, supra, contains this statement:

“A witness asked an impeaching question upon cross-examination and answering in the negative can always be supported in rebuttal, if any evidence is introduced by the other side to show his answer untrue.”

Manifestly, therefore, the defendant's witness should have been permitted to answer the interrogatories.

[4] II. Next protest is made because the sheriff was permitted to tell the jury, at the defendant's trial, statements made by...