State v. Falconer

• Decision Date: 18 December 1886
• Parties: STATE v. FALCONER.
• Court: Iowa Supreme Court

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.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 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 the defendant filed a motion for a continuance on the alleged ground of the absence of a material witness, which motion the district court overruled. Some time before the term the district attorney served a notice on the defendant that he would examine the same witness on the trial. A few days before the commencement of the term, defendant and his counsel ascertained that the witness had not been subpœnaed by the state. They then instituted an inquiry with reference to him, and ascertained that he was absent from the state, and that his testimony could not be obtained in time to be used at that term. They also instituted an inquiry to ascertain what the substance of his testimony would be. The result of their inquiries is stated in the affidavit filed in support of the motion, in the following language: “That said Sutton (who is counsel for defendant) made careful inquiry of what said Perrigo (the witness) had said about this defendant and this cause, and learned from reputable and reliable parties that said Perrigo claimed that he could not corroborate witness John T. Bush; that while he saw the alleged stolen cattle at the same time that said Bush saw them, and also saw, at the same time, the man with them, and in charge of them, he was not able to identify said man as this defendant.” In another part of the affidavit it is stated that defendant expects to prove by the witness that he saw the man who assisted Bailey in driving the cattle from the herd to Garner, and in loading them on the cars, and that defendant is not that person. But neither defendant nor his counsel had seen the witness, or had any communication with him. Their only information as to what his testimony would be was that communicated to Mr. Sutton by the persons of whom he had inquired. The information communicated was simply that the witness had stated that he was not able to identify the defendant as the man who was with the cattle at the time in question. The court could not presume that the evidence of the witness would be any more favorable to the defendant than was indicated...