State v. Arthur

• Decision Date: 16 December 1905
• Citation: State v. Arthur, 129 Iowa 235, 105 N.W. 422 (Iowa 1905)
• Parties: STATE OF IOWA v. JAMES ARTHUR, Appellant
• Court: Iowa Supreme Court

105 N.W. 422

129 Iowa 235

STATE OF IOWA v. JAMES ARTHUR, Appellant

Supreme Court of Iowa, Des Moines

December 16, 1905

Appeal from Pottawattamie District Court.--HON. A. B. THORNELL Judge.

DEFENDANT was indicted with one John Bernstein, charged with the crime of breaking and entering a bank building in the town of Treynor, in Pottawattamie county.Defendant alone pleaded not guilty, and, being convicted, was sentenced to ten years' imprisonment in the penitentiary.From this sentence he appeals.--Reversed.

Reversed and remanded.

W. H Killpack, for appellant.

Chas W. Mullan, Attorney General, and Lawrence De Graff.Assistant Attorney General, for the State.

McCLAINJ. DEEMER, J. (dissenting).

OPINION

McCLAIN, J.

I.

No question is made as to the fact that the Treynor Savings Bank was broken and entered, as charged in the indictment; but one of the objections raised for defendant is that there is no evidence that the venue of the crime was in Pottawattamie county west of the west line of range 40 so as to bring it within the jurisdiction of the court in which the case was tried; for Pottawattamie county is divided into two portions for judicial purposes, and the trial court had only jurisdiction of offenses committed in that portion of the county west of the line above described.The evidence shows, however, that the bank building referred to by witnesses as having been broken and entered was at the town of Treynor, which is described as in Pottawattamie county, fifteen miles east of Council Bluffs, where the trial was had; and we can take judicial notice of the fact that any point in the county not further east from Council Bluffs than fifteen miles is west of the west line of range 40.There is no difficulty, therefore, as to the sufficiency of proof of the venue.

II.The defendant and Bernstein were arrested together, the next day after the commission of the crime, at a saloon which, as we understand it, is situated between Treynor and Council Bluffs, and were taken to the town of Treynor, and from there to the county jail at Council Bluffs.During the evening they were separately interrogated by the sheriff.Defendant was confined during the night in a steel cell in the jail, where he was visited by the sheriff the next morning and directed to give up his shoes.He complied with this direction, and another pair was supplied to him.The sheriff and others subsequently made use of one of these shoes for the purpose of comparing it with a track found in a snowbank about a quarter of a mile west of Treynor, where a wagon which had been taken from a livery stable in the town of Treynor on the night of the breaking of the bank was found abandoned.Over objections for defendant, the correspondence of this shoe with the track was testified to by the persons who made these comparisons, and it is contended for defendant that this evidence was incompetent, for the reason that defendant could not be compelled to furnish testimony incriminating himself.The objections were predicted upon the rule announced in State v. Height,117 Iowa 650, 91 N.W. 935, andState v. Sheridan,121 Iowa 164, 96 N.W. 730, in which it was held error to admit in evidence facts of this kind, ascertained by a personal examination of defendant while in custody, against his protest, or by unlawful search of his house.

The rule is not applicable, however, to the state of facts disclosed in this record; for it does not appear that defendant made any objection to surrendering his shoes, but, on the contrary, it seems that he surrendered them voluntarily and without compulsion.It is not enough to say that defendant had reason to believe that his shoes would be taken from him by force if he did not voluntarily surrender them.His right not to furnish evidence against himself was one which could be waived, and must be deemed to have been waived if not insisted upon.It is too well settled to require the citation of authorities that comparisons of this character may be testified to as against defendant, where the means of making such comparisons have been procured without violation of any right or privilege of the defendant insisted on by him.SeeState v. Height, supra, andState v. Edwards,51 W.Va. 220, (41 S.E. 429, 59 L.R.A. 465).Many illustrations are given in the notes to the case last cited in 59 L.R.A. 465.

III.The instructions of the court to the effect that, if defendant and Bernstein confederated together to commit the crime, defendant was responsible for the acts of Bernstein and that testimony relating to the conduct of Bernstein while proceeding to carry out the common purpose might be shown as against the defendant, are objected to by counsel on the theory that there was no competent evidence of a conspiracy.He contends that it was error, therefor, to submit the question to the jury on the theory of a conspiracy.In this connection it is proper, also, to notice exceptions taken to testimony tending to connect Bernstein with the commission of the crime in question.These objections on the part of defendant go to the very foundation of the case for the...