State v. Falconer,

CourtUnited States State Supreme Court of Iowa
Writing for the CourtREED
Citation70 Iowa 416,30 N.W. 655
PartiesSTATE v. FALCONER.
Decision Date18 December 1886

70 Iowa 416
30 N.W. 655

STATE
v.
FALCONER.

Supreme Court of Iowa.

December 18, 1886.


Appeal from district court, Hancock county.

The defendant was convicted of the larceny of 11 head of cattle, and sentenced to a term of imprisonment in the penitentiary, and from that judgment he appealed.

[30 N.W. 655]

P. M. Sutton, W. A. Foster, and James Allison, for defendant.

A. J. Baker, Atty. Gen., for the State.


REED, J.

It is charged in the indictment that one James W. Bailey had the property which is alleged to have been stolen in his possession as the agent and servant of the owner thereof, and that he embezzled and fraudulently converted the same to his own use, and that this defendant and five others aided and abetted him in the commission of said crime. It was proven on the trial that, in the spring of 1882, Bailey received into his possession, in Marshall county, about 800 head of cattle belonging to parties living in that and adjoining counties, which he undertook to herd during the summer, and that he drove them into Hancock county, where he herded them on the range. During the summer he made two shipments of cattle taken from the herd; the last shipment being made on the nineteenth of August, and consisted of three car loads, and included the cattle mentioned in the indictment. The cattle were taken and disposed of by Bailey without the knowledge or consent of the owners, and with the intent to fraudulently convert them to his own use. Those shipped on the nineteenth of August were taken out of the herd

[30 N.W. 656]

on the 17th, and were driven to Garner, a station on the Chicago, Milwaukee & St. Paul Railway, where they were loaded onto the cars, and from there were taken to Milwaukee, where they were sold. Bailey was assisted in separating them from the herd, and driving them to Garner, and loading them on the cars by another person, who also accompanied him to Milwaukee, and was present when the cattle were sold. The claim of the state is that the defendant is that person.

1. The cause came on for trial at the September term, 1884, of the district court, and a jury was impaneled and sworn to try it. After the state had introduced evidence in support of the indictment and rested, and the defendant had introduced his evidence, the district attorney filed a motion for leave to examine a witness who had not been examined before the grand jury, and of whose evidence the notice prescribed by section 4421 of the Code had not been given. This motion was supported by the affidavit of the district attorney setting out the substance of what he expected to prove by the witness, and the diligence he had used in procuring evidence in the case; also alleging that he did not learn of the witness, or what his testimony would be, until after he had entered upon the trial of the cause. The court sustained the motion; and, the defendant thereupon electing to have the cause continued, the jury was discharged, and the cause continued to a subsequent term. At the next term of the court the defendant pleaded these facts as a bar to the indictment, claiming that, having once been put upon trial thereon, he could not again be put in jeopardy on the same charge. The district court sustained a demurrer to this plea.

The case, in its facts, is not materially different from State v. Parker, 66 Iowa, 586;S. C. 24 N. W. Rep. 225. In that case the jury had been sworn, and one witness examined in support of the indictment, when the district attorney filed a motion for leave to examine witnesses who had not been examined before the grand jury, which was granted, and the defendant thereupon elected to have the cause continued, which was done. At a subsequent term he pleaded this proceeding in bar, but we held that he had not been put in jeopardy by the mistrial, within the meaning of the federal constitution, (assuming that it was applicable to the case;) nor had he been acquitted of the offense charged, within the meaning of article 1, § 12, of the constitution of this state. It can make no difference that the jury was discharged at a later period in this case than in that. A trial was entered upon in both cases. If it could be said that the defendant, in either case, was put in jeopardy of life or liberty, such jeopardy was created by the fact that he was put upon his trial on the indictment against him; so that the proceeding in the one case was as effective as in the other. There is no distinction in principle, then, between this case and State v. Parker. The ruling of the district court on the demurrer to the plea of former acquittal is correct.

2. At the term at which the cause was tried...

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5 practice notes
  • Ford v. Dilley, No. 30938.
    • United States
    • United States State Supreme Court of Iowa
    • February 18, 1916
    ...due if a reasonable doubt exists. But we hold that conflict will not justify setting aside a conviction. State v. Falconer, 70 Iowa, 416, 30 N. W. 655. And we will not reverse a conviction because we entertain a reasonable doubt of guilt, and hold that on whether the evidence establishes gu......
  • Brock v. State of North Carolina, No. 34
    • United States
    • United States Supreme Court
    • February 2, 1953
    ...indorsed on indictment, mistrial on motion of the court). 9. State v. Parker, 1885, 66 Iowa 586, 24 N.W. 225, and State v. Falconer, 1886, 70 Iowa 416, 30 N.W. 655. 10. State v. Nelson, 1845, 7 Ala. 610 (jury irregularly sworn too early and the proceedings then revealed further issues previ......
  • State v. Critelli, No. 46798.
    • United States
    • United States State Supreme Court of Iowa
    • November 15, 1946
    ...State v. Redman, 17 Iowa 329;State v. Tatman, 59 Iowa 471, 13 N.W. 632;State v. Parker, 66 Iowa 586, 24 N.W. 225;State v. Falconer, 70 Iowa 416, 30 N.W. 655;State v. Pierce, 77 Iowa 245, 42 N.W. 181;State v. Kappen, 191 Iowa 19, 180 N.W. 307;State v. Vaughan, 29 Iowa 286. These cases indica......
  • State v. Saling, No. 30408.
    • United States
    • United States State Supreme Court of Iowa
    • September 28, 1916
    ...76 N. W. 644, that we will not readily set aside the verdict in criminal cases. To be sure, we say in State v. Falconer, 70 Iowa, 416, 30 N. W. 655, that the verdict will not be interfered with when there is a clear conflict in the evidence. But we have never departed from the rule that we ......
  • Request a trial to view additional results
5 cases
  • Ford v. Dilley, No. 30938.
    • United States
    • United States State Supreme Court of Iowa
    • February 18, 1916
    ...due if a reasonable doubt exists. But we hold that conflict will not justify setting aside a conviction. State v. Falconer, 70 Iowa, 416, 30 N. W. 655. And we will not reverse a conviction because we entertain a reasonable doubt of guilt, and hold that on whether the evidence establishes gu......
  • Brock v. State of North Carolina, No. 34
    • United States
    • United States Supreme Court
    • February 2, 1953
    ...indorsed on indictment, mistrial on motion of the court). 9. State v. Parker, 1885, 66 Iowa 586, 24 N.W. 225, and State v. Falconer, 1886, 70 Iowa 416, 30 N.W. 655. 10. State v. Nelson, 1845, 7 Ala. 610 (jury irregularly sworn too early and the proceedings then revealed further issues previ......
  • State v. Critelli, No. 46798.
    • United States
    • United States State Supreme Court of Iowa
    • November 15, 1946
    ...State v. Redman, 17 Iowa 329;State v. Tatman, 59 Iowa 471, 13 N.W. 632;State v. Parker, 66 Iowa 586, 24 N.W. 225;State v. Falconer, 70 Iowa 416, 30 N.W. 655;State v. Pierce, 77 Iowa 245, 42 N.W. 181;State v. Kappen, 191 Iowa 19, 180 N.W. 307;State v. Vaughan, 29 Iowa 286. These cases indica......
  • State v. Saling, No. 30408.
    • United States
    • United States State Supreme Court of Iowa
    • September 28, 1916
    ...76 N. W. 644, that we will not readily set aside the verdict in criminal cases. To be sure, we say in State v. Falconer, 70 Iowa, 416, 30 N. W. 655, that the verdict will not be interfered with when there is a clear conflict in the evidence. But we have never departed from the rule that we ......
  • Request a trial to view additional results

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