State v. Cross

• Decision Date: 11 October 1895
• Parties: STATE v. CROSS.
• Court: Iowa Supreme Court

95 Iowa 629

64 N.W. 614

STATE

v.CROSS.

Supreme Court of Iowa.

Oct. 11, 1895.

Appeal from district court, Pottawattamie county; W. S. Lewis, Judge.

The defendant was convicted of the crime of larceny, and adjudged to be imprisoned in the state penitentiary at Ft. Madison for the term of two years. From that judgment he appeals. Affirmed.L. F. Genung and Benjamin & Preston, for appellant.

Milton Remley, Atty. Gen., for the State.

ROBINSON, J.

On the 24th day of July, 1893, five hogs owned by A. E. Patrick were stolen from a feed lot on his farm, four miles southeast of the town of Oakland, in Pottawattamie county. The fact that they were stolen is not denied. Between 4 and 5 o'clock of the next morning the defendant and a young man named Emerick were seen driving four of the hogs in the east part of Oakland, towards the stock yards. Three were driven to the yards, but one became exhausted, and stopped, before reaching them. The defendant spent some time in caring for that hog, and in trying to find a purchaser, and talked to different persons in regard to the hogs. The statement that he made was that he was driving them from his mother's farm, which was southeast of that of Patrick. Emerick said little, if anything, in regard to them. It appears that the defendant was tried twice in the district court. During the second trial he testified in his own behalf, denying that he was in any manner responsible for the taking of the hogs. He admitted that he had helped to drive them a part of the distance to Oakland, but states that he did not know they had been stolen. He does not deny that, while he was helping to drive the hogs to the stock yards, he represented that they were being driven from his mother's farm, and that he was the most active in trying to sell them. He explains his connection with the affair by stating that on Sunday, the day before the hogs were stolen, Emerick, who was his cousin, told him that he had that day won five hogs from Patrick, in a game of poker, and that Patrick did not wish it known that he had lost the hogs in that manner, and desired Emerick to take them away early the next morning; that Emerick asked him to meet him the next morning, at daylight, in the road near Bird's place, about two miles from Oakland; that he did so, and found Emerick with four hogs, which he helped drive to town, and which Emerick said he had won from Patrick; that Emerick said he was not very well acquainted, and asked the defendant to state that the hogs belonged to his mother, and that what he said and did was in consequence of these requests of Emerick; that he believed the statements made by Emerick to be true, and that he was rightfully in possession of the hogs.

1. The appellant complains that the district court failed to instruct the jury respecting his claim in regard to his connection with the theft of the hogs, and the evidence in support of it. The court charged the jury that “if the defendant assisted in driving the hogs to town and disposing of them, not knowing the same to have been stolen, then he would not be guilty of larceny.” This necessarily directed the attention of the jury to the defense upon which the defendant relied, and the effect which his testimony, if true, should have; for that was designed to show that what he did was without knowledge that the hogs had been stolen, not that his acts, if performed with guilty knowledge and intent, were not sufficient to warrant his conviction. There was no material conflict in the evidence in regard to what he had actually done. Therefore the charge given was sufficient, especially as no further instruction was asked by the defendant. It was not necessary for the court to refer in its charge to the testimony upon which the claims of the defendant rested, although it would have been proper for it to have done so.

2. The appellant contends that the court erred in permitting the state to call and examine as witnesses T. J. Roy and J. M. Williams. Their names were indorsed on the indictment, and they were examined by the grand jury; but it is said that no minutes of their testimony before that body were attached to the indictment, or filed in the office of the clerk, and no notice of the intention of the state to examine the witnesses was given. The appellant has caused to be certified to this court, for inspection, the indictment returned by the grand jury, and a paper purporting to contain minutes of the testimony of all...