State v. Burch
| Decision Date | 24 October 1924 |
| Docket Number | 36354 |
| Citation | 200 N.W. 442,199 Iowa 221 |
| Parties | STATE OF IOWA, Appellee, v. ROSCOE BURCH, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED JANUARY 16, 1925.
Appeal from Madison District Court.--W. G. VANDER PLOEG, Judge.
DEFENDANT appeals from a conviction of larceny and the judgment sentencing him to the penitentiary. For the former opinion in this case, see State v. Burch, 195 Iowa 427.
Affirmed.
J. M Parsons, E. W. Dingwell, and A. W. and Phil R. Wilkinson, for appellant.
Ben J Gibson, Attorney-general, Maxwell A. O'Brien, Assistant Attorney-general, and Leo C. Percival, County Attorney, for appellee.
STEVENS, J. ARTHUR, C. J., and DE GRAFF and VERMILION, JJ., concur.
Appellant and one Walter DeBord were indicted, separately, by the grand jury of Madison County, for larceny. The larceny, if participated in by appellant, was accomplished on the night of June 18, 1921. The property alleged to have been stolen belonged to one Tom Jackson, and consisted of ten hogs, averaging in weight about 250 pounds, described in the evidence as "six red, three black, and one white hogs." DeBord entered a plea of guilty, and, at the time of the trial. had been released from the penitentiary. Appellant has been twice tried and twice convicted by the jury. The first conviction was set aside, upon appeal to this court, on account of error of the court in the admission of incompetent evidence. DeBord testified for the State upon both trials.
Many propositions are relied upon by appellant for reversal, some of which can be disposed of only upon a brief statement of the facts and conclusions established by the evidence. The following facts were established either by undisputed or ample competent evidence, to wit: that Walter DeBord was employed, at the time it is charged in the indictment that the crime was committed, by appellant, and resided on a farm leased by him, 3 miles east of Booneville, Dallas County, which is about 26 miles northeast from another farm leased by appellant, on which he resided; that the farm on which appellant resided was located about 5 miles west of Winterset, and adjoined the premises occupied by Tom Jackson; that, sometime about midnight of June 18th, appellant and DeBord loaded some hogs onto a Ford truck, in a yard adjoining the former's residence; that DeBord, immediately after the loading was completed, drove the truck away, intending to take the hogs to the Booneville farm; that, before he left, appellant agreed to meet him at a place 15 or 16 miles northeast from his home, and assist him over what is known as the Berger hill; that DeBord was overtaken at the place designated, and was assisted up the hill by appellant, who attached his Buick car to the Ford truck with ropes; that thereupon, appellant returned home, arriving about daylight, Sunday morning; that, while the Ford truck waited at the Berger hill for appellant to arrive, or while it was in that immediate vicinity, one Roy Beedle and one John Kitchell observed the hogs, under circumstances that gave them an opportunity to learn the color and number thereof; that DeBord arrived at the Booneville farm, where he resided, about 6 o'clock A. M., June 19th; that, during that day, several neighbors who visited DeBord saw red and black hogs on his premises; that, on the following Thursday, DeBord sold six red hogs and one black hog, which had been stolen from Tom Jackson, to one Robinson at Booneville, for which he received a check payable to himself for $ 127.50.
The evidence further disclosed that appellant had no red hogs on his premises west of Winterset, and that Tom Jackson owned a herd of 206 hogs, most of which were red. All of the above matters were established by the evidence, independent of the testimony of DeBord, who, in addition thereto, stated that he and appellant arranged, about a month before the night on which the crime was committed, to steal the hogs, and that they waited about appellant's premises until midnight on Saturday night, and then took the Ford truck to a place in a narrow, unfrequented lane, about half way between appellant's home and Jackson's premises, where they left it until they went to Jackson's hog lot, opened a gate, and appellant drove six red hogs, three black ones, and one white hog into the lane, through which the hogs were driven into the lot, where they were loaded into the truck which DeBord had driven back to the yard and placed in position for loading the hogs; that he and appellant, unassisted and without the presence of any other person, loaded the hogs into the truck; and that he drove it away, as we have already detailed.
Appellant, his wife, and three men testified that they were present when the hogs were loaded; that they were all black but one, which was red, and which, according to the testimony of appellant, had been brought in the truck from the Booneville farm the same day. Mrs. Burch also testified that she and the children accompanied her husband in the Buick car to the Berger hill, and that they returned home about daylight Sunday morning. Three other witnesses called by appellant testified that they had been fishing all night Saturday night; that they saw DeBord shortly after 5 o'clock in the highway near the gate which entered his premises; that they observed the color of the hogs; and that they were all black except one red hog and one white one.
Alvin Terry, another witness for the State, testified that he was working for appellant on the Booneville farm; that, on Sunday afternoon, he went from Winterset with him and his wife; that, when they arrived, there were six or ten red hogs in the feed lot that were not there the day before; and that appellant went with him to the lot, where he had opportunity to observe them.
We come now to take up the several propositions relied upon by appellant for reversal.
I. The larceny charged in the indictment was committed, if at all, by appellant and Walter DeBord. They were, therefore, accomplices, and, under the statute, Section 5489, Code of 1897, a conviction could not be had upon the testimony of DeBord alone. Other evidence which tended to connect defendant with the commission of the crime was necessary to a conviction. It is contended by appellant that the testimony of DeBord is without the required corroboration.
The narrow lane, which was little used for travel, furnished a convenient means of communication between the premises on which appellant resided, and the Jackson hog lot. Will Jackson, a brother of Tom's, and James, his father testified that, on Thursday after the events narrated, they examined the lane above described, and saw hog tracks leading from the gate into the lane, and followed them to within a short distance of appellant's residence. Appellant introduced the testimony of several witnesses, for the purpose of showing that any hog tracks made in the lane on the night in question must necessarily have been completely obliterated at the time the witnesses claim to have discovered them. This evidence was objected to upon the ground that it was incompetent, irrelevant, and too remote in point of time to be admissible. We think it was admissible, the weight of it being for the jury. None of the parties who claimed to have knowledge of the use made of the lane after Saturday night, and before it is claimed the tracks were discovered, saw any hog tracks, or perhaps had any occasion to look therefor. The evidence does not show that the tracks were, or might have been, obliterated at the gate or for some distance away therefrom. The corroboration furnished by this evidence, when considered in the light of the record as a whole, is not very conclusive; but we think the testimony of DeBord is otherwise abundantly corroborated. Appellant admitted that he told DeBord to sell a load of the heavier hogs. The witness Terry testified that he went from the Booneville farm with appellant and DeBord on Saturday afternoon in the truck, and that they did not take a red hog with them, as claimed by appellant. The proceeds received from the sale of the hogs to Robinson were traced only into the hands of DeBord. The evidence of the witness Terry, together with that of Beedle and Kitchell, is corroborative of the testimony of DeBord that the hogs loaded on the Ford truck by him and appellant and taken to the Booneville farm were mostly red in color. Upon appellant's theory that the hogs were his own, and black, they are unaccounted for after he left DeBord at the Berger hill on his way to the farm where he resided. No evidence was introduced to show what became of the black hogs, or that any effort was made by appellant to ascertain where and to whom they were sold. After DeBord had been arrested, and while before the magistrate, appellant stated that the hogs sold to Robinson were his. It was absolutely impossible for DeBord to have disposed of the black hogs and to have substituted red hogs stolen from Jackson during the time which intervened between the time he left the farm and the time when he was overtaken by appellant at the Berger hill. The jury may well have found that the hogs Kitchell and Beedle saw in the truck at the Berger hill were mostly red, and that the hogs delivered by DeBord at the Booneville farm in all respects answered the description of the stolen property. All of the evidence shows that appellant assisted DeBord in loading the truck, and he concedes that he did. The testimony of the several witnesses referred to squarely contradicts appellant's claim that the hogs were black. If they were red, which the jury may well have found, appellant deliberately gave false testimony. The only purpose he could have had in so doing was to avoid the inevitable conclusion that he...
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