State v. Boyd

• Citation: 199 Iowa 1206,200 N.W. 205
• Decision Date: 17 October 1924
• Docket Number: No. 36324.,36324.
• Parties: STATE v. BOYD.
• Court: United States State Supreme Court of Iowa

199 Iowa 1206

200 N.W. 205

STATE

v.BOYD.

No. 36324.

Supreme Court of Iowa.

Oct. 17, 1924.

Appeal from District Court, Henry County; Oscar Hale, Judge.

Defendant was indicted for the crime of receiving stolen property. He was convicted by a jury, and the value of the property was found to be $344.10. Judgment was entered upon the verdict. Defendant appeals. Affirmed.D. W. Bates, of Albia, and Lloyd L. Duke, of Ottumwa, for appellant.

Ben J. Gibson, Atty. Gen., Neill Garrett, Asst. Atty. Gen., and John Barwise, Co. Atty., and Ralph H. Munro, Sp. Prosecutor, both of Fairfield, for the State.

PRESTON, J.

[1] This is the third appeal to this court in this matter, same title, 195 Iowa, 1091, 191 N. W. 84;196 Iowa, 226, 194 N. W. 177. The first trial was in Jefferson county, where defendant lived, and on the second trial a change of venue was taken to Van Buren county, and this last trial in the district court was tried on change of venue in Henry county. The case appears to have been hard fought. Nothing has been overlooked by counsel for defendant. Some of the propositions now raised have little merit, and some of the others were disposed of on prior appeals. The evidence was sufficient to take the case to the jury and sustain the verdict, notwithstanding the claim by appellant that he was acquitted in Washington county by a jury on a charge growing out of the transaction, and wherein it is alleged that the evidence was practically the same as herein. One jury may find one way and another the other way in either a civil or criminal case upon the same evidence. Such a thing is not unknown. It depends upon the make-up, mental attitude, and temperament of the jurors. The argument is directed mainly to this point and seems to be the proposition most relied upon.

2. Appellant has argued at some length that the district court had no jurisdiction because there was no application for a change of venue by the defendant, and that the court transferred the case on its own motion. This is answered by the Attorney General at some length and reason given why, defendant consenting, there was jurisdiction. Later, upon discovering that there had been an application for a change of venue, and that it had been sustained, the Attorney General sets out an additional abstract showing such facts, and we find a pencil notation in appellant's argument on this point: “Strike out, change regular.” Nothing further need be said on this proposition.

3. On the question as to the alleged want of corroboration of an accomplice it was held on the first appeal that witness Hoskinson was not an accomplice in the transaction under the present indictment, and that the witness was abundantly corroborated, 195 Iowa, supra, at page 1094, 191 N. W. 86.

4. On the second appeal the case was reversed on account of error in the instruction relating to the defense of alibi. The objectionable language is not contained in the instruction given on this trial, and it is in harmony with our prior decisions. State v. Gulliver, 163 Iowa, 123, 141, 142 N. W. 948;State v. Whitbeck, 145 Iowa, 29, 39, 123 N. W. 982.

[2] 5. The point is made that the instruction on reasonable doubt does not correctly state the law. The proposition is very briefly stated and without citation of authority. It is thought that the instruction is erroneous in that it failed to instruct the jury that a reasonable doubt might be predicated upon a lack of evidence as well as upon the evidence introduced. We have held that an instruction on reasonable doubt which, as herein, contains the phrase “arising from a consideration of the whole case” includes a consideration of the lack of evidence. State v. Ritchie, 196 Iowa, 352, 362, 190 N. W. 943.

[3] 6. Complaint is made, and error assigned, as to the alleged misconduct of the prosecutor in his argument to the...