State v. Arthur

CourtUnited States State Supreme Court of Iowa
Writing for the CourtDEEMER
Citation135 Iowa 48,109 N.W. 1083
PartiesSTATE v. ARTHUR.
Decision Date14 December 1906

135 Iowa 48
109 N.W. 1083

STATE
v.
ARTHUR.

Supreme Court of Iowa.

Dec. 14, 1906.


Appeal from District Court, Pottawattamie County; O. D. Wheeler, Judge.

Defendant was indicted, tried, and convicted of the crime of breaking and entering, and from the judgment imposed appeals. Affirmed.

[109 N.W. 1084]

Sims & Killpack and Harl & Tinley, for appellant.

Chas. W. Mullan, Atty. Gen., and Lawrence De Graff, Asst. Atty. Gen., for the State.


DEEMER, J.

This is the second time the case has been before us. The opinion on the former appeal is to be found in 105 N. W., at page 422. After remand to the district court the case was again tried, resulting in a verdict of conviction. Several questions are presented on this appeal which did not arise on the former trial, and to these we shall first direct attention.

1. When the case was called for trial, the county attorney made an application for postponement in order that he might use the testimony of certain witnesses who were not before the grand jury and of whose testimony he had not given the requisite notice as provided in section 5373 of the Code. The court indicated that it would grant the application, whereupon defendant consented to the use of the witnesses without waiting for the expiration of the four days. Of this complaint is made. This matter was so largely in the discretion of the trial court that we should not interfere in the absence of a showing as to abuse of that discretion. Defendant is seeking to take advantage of a mere technicality, and not to advantage himself of any substantial right. No prejudice resulted to defendant, and the court did not abuse its discretion.

2. The building which was broken and entered was a bank in a small unincorporated town, known as “Traynor,” in Pottawattamie county. The next morning after the burglary was committed certain tools were found in the bank building which were taken by breaking and entering from a nearby blacksmith shop. The state was permitted to show these facts over defendant's objections. This was a part of the history of the case, and were properly admitted. State v. Richards, 126 Iowa, 497, 102 N. W. 439;State v. Gray, 116 Iowa, 231, 89 N. W. 987.

3. That same night a team was taken from a stable close at hand, hitched to a spring wagon, and driven in the direction which defendant must have gone had he been one of the guilty parties. The wagon when found had broken down in a snowdrift and the animals were loose. Near where the wagon was abandoned was a footprint in the snow which was made as by one jumping from the wagon. One of defendant's shoes was fitted into this footprint and was found to exactly correspond therewith. This evidence was all objected to, but we think it was both relevant and material. A man by the name of Bernstein was undoubtedly one of the parties who broke and entered the bank building. Indeed, he pleaded guilty and was sentenced therefor. Defendant was in company with Bernstein in the evening of the day before the breaking occurred, and was also with him next morning and until arrested for the commission of the crime. Shortly after the arrest defendant declared that he did not know Bernstein and had never met...

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10 practice notes
  • State v. Schenk, No. 46268.
    • United States
    • United States State Supreme Court of Iowa
    • April 3, 1945
    ...the evidence should be introduced. State v. Paden, 199 Iowa 383, 202 N.W. 105;State v. Walker, 124 Iowa 414, 100 N.W. 354;State v. Arthur, 135 Iowa 48, 109 N.W. 1083;State v. Schreck, 231 Iowa 542, 1 N.W.2d 690, 694. In the Schreck case this court said: ‘The fact of conspiracy may be establ......
  • State v. Critelli, No. 46798.
    • United States
    • United States State Supreme Court of Iowa
    • November 15, 1946
    ...with the trial court. State v. Walker, 124 Iowa 414-417, 100 N.W. 354;State v. Moore, 217 Iowa 872, 251 N.W. 737;State v. Arthur, 135 Iowa 48, 109 N.W. 1083; State v. Schreck, supra; State v. Schenk, supra; State v. Terry, supra. We find no error in appellant's third assignment. IV. We have......
  • State v. Schreck, No. 45394.
    • United States
    • United States State Supreme Court of Iowa
    • January 13, 1942
    ...of action. This is true in the administration of both civil and criminal law. Hanson v. Kline, 136 Iowa 101, 113 N.W. 504;State v. Arthur, 135 Iowa 48, 109 N.W. 1083. In the determination of this appeal the decision necessarily rests on the fact side. There can be and is no quarrel with the......
  • State v. Ottley
    • United States
    • United States State Supreme Court of Iowa
    • May 10, 1910
    ...N. W. 599;State v. Donavan, 125 Iowa, 239, 101 N. W. 122;State v. Crofford, 133 Iowa, 478, 110 N. W. 921;State v. Arthur, 135 Iowa, 48, 109 N. W. 1083. 4. Defendant complains, also, of instructions 5 and 7 as given by the trial court. No specific error is pointed out to us in instruction 5.......
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10 cases
  • State v. Schenk, No. 46268.
    • United States
    • United States State Supreme Court of Iowa
    • April 3, 1945
    ...the evidence should be introduced. State v. Paden, 199 Iowa 383, 202 N.W. 105;State v. Walker, 124 Iowa 414, 100 N.W. 354;State v. Arthur, 135 Iowa 48, 109 N.W. 1083;State v. Schreck, 231 Iowa 542, 1 N.W.2d 690, 694. In the Schreck case this court said: ‘The fact of conspiracy may be establ......
  • State v. Critelli, No. 46798.
    • United States
    • United States State Supreme Court of Iowa
    • November 15, 1946
    ...with the trial court. State v. Walker, 124 Iowa 414-417, 100 N.W. 354;State v. Moore, 217 Iowa 872, 251 N.W. 737;State v. Arthur, 135 Iowa 48, 109 N.W. 1083; State v. Schreck, supra; State v. Schenk, supra; State v. Terry, supra. We find no error in appellant's third assignment. IV. We have......
  • State v. Schreck, No. 45394.
    • United States
    • United States State Supreme Court of Iowa
    • January 13, 1942
    ...of action. This is true in the administration of both civil and criminal law. Hanson v. Kline, 136 Iowa 101, 113 N.W. 504;State v. Arthur, 135 Iowa 48, 109 N.W. 1083. In the determination of this appeal the decision necessarily rests on the fact side. There can be and is no quarrel with the......
  • State v. Ottley
    • United States
    • United States State Supreme Court of Iowa
    • May 10, 1910
    ...N. W. 599;State v. Donavan, 125 Iowa, 239, 101 N. W. 122;State v. Crofford, 133 Iowa, 478, 110 N. W. 921;State v. Arthur, 135 Iowa, 48, 109 N. W. 1083. 4. Defendant complains, also, of instructions 5 and 7 as given by the trial court. No specific error is pointed out to us in instruction 5.......
  • Request a trial to view additional results

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