State v. Ferguson

• Decision Date: 12 January 1937
• Docket Number: 43587.
• Citation: 270 N.W. 874,222 Iowa 1148
• Parties: STATE v. FERGUSON.
• Court: Iowa Supreme Court

270 N.W. 874

222 Iowa 1148

STATE v. FERGUSON.

No. 43587.

Supreme Court of Iowa.

January 12, 1937

Appeal from District Court, Mahaska County; D. W. Hamilton, Judge.

The defendant was tried and convicted under an information charging him with the theft of certain cattle, and from such conviction he appeals.

Reversed.

McCoy & McCoy, of Oskaloosa, and R. J. Shaw, of Sigourney, for appellant.

Edward L. O'Connor, Atty. Gen., Walter F. Maley, First Asst Atty. Gen., and Harold J. Fleck, Co. Atty., of Oskaloosa, for the State.

DONEGAN, Justice.

Under an information filed by the county attorney of Mahaska county, Iowa, the defendant, E. B. (Lash) Ferguson, and his son, Ben Ferguson, were jointly charged with the crime of larceny in stealing, taking, and carrying away eleven head of cattle which were the property of Vernie Braden. The defendant, E. B. (Lash) Ferguson, was tried separately and found guilty, and judgment was entered upon the verdict thus rendered. From such judgment and rulings of the court said defendant appeals.

I.

In considering the alleged errors upon which defendant relies for reversal, we shall first take up the last of these alleged errors, because this alleged error goes to the facts of the case which it will be well to understand at the outset. The defendant lived at a little settlement known as Union Mills, in Mahaska county, where he had a pasture in which he kept cattle owned by him. Vernie Braden had a pasture about three miles east of Union Mills in which he pastured thirty-five head of cattle, twenty-three of which belonged to him. Thirteen of Braden's cattle were black. All of the thirty-five head of cattle were in the pasture on June 10, but on June 17, when Braden next visited the pasture, eleven of his cattle (nine black and two red) were missing. Between the defendant's pasture and the Braden pasture there is a road which extends southward from the defendant's pasture about a mile, then eastward for about three miles, then northward over a bridge across the north Skunk river. From the place where the road crosses the north Skunk river there is a road on which, by going northward then westward, and then southward, one can go from the bridge to Union Mills. The Braden pasture was on the east side of the road where it crossed the north Skunk river, and just north of the north end of the bridge there was a gate opening into the Braden pasture. For quite a distance both north and south of this bridge and on both sides of the road there was considerable timber and brush. There was no house nearer than approximately one-fourth of a mile of the bridge, and neither the bridge nor the gate into the Braden pasture was visible from any of the houses in the vicinity. There is evidence tending to show that between about 11:30 o'clock in the forenoon of June 10, 1935, and some time after noon on that day, the defendant, E. B. (Lash) Ferguson, was seen herding a bunch of cattle estimated variously at from fifteen to twenty-five head along the east and west road which we have described as extending between Union Mills and the bridge over the north Skunk river. When first seen along this road, the defendant was perhaps a mile and a half to two miles south and west of the bridge. Between that point and the bridge he was seen by other witnesses, the last of these witnesses having seen him at a point a little more than a quarter of a mile south and west of the bridge. Some of these witnesses also saw the defendant's son, Ben Ferguson, riding in a gray-colored automobile and apparently helping his father herd the cattle along the road. All of these witnesses state that at the time they saw the defendant herding his cattle, which was before the cattle crossed the bridge, there were no black cattle among them. There is further testimony that in the afternoon of the same day E. B. Ferguson and his son were seen driving a bunch of cattle on the road north of the bridge, and that, when first seen north of the bridge, there were probably from eight to ten black cattle among the cattle in the herd. Between that time and 7 or 8 o'clock in the evening of the same day the defendant and his son, Ben Ferguson, were seen by several witnesses at different points along the road which extends northward and westward and then southward between the bridge and Union Mills, and these witnesses testify that the defendant and his son were driving a bunch of cattle estimated variously from twenty to thirty-five head, in which there were several head of black cattle.

There is evidence that, on the same night, defendant's son, Ben Ferguson, called at the home of one Phillips, who conducted a trucking business at New Sharon, Iowa, and engaged Phillips to go to the defendant's place at Union Mills on the following morning to haul some stock. The testimony of Phillips shows that on the following morning he went to the defendant's place where eleven head of cattle, some black and some red, were loaded onto his truck; that he was directed by the defendant to haul these cattle to the sales barn at Toledo, Iowa, and that the defendant accompanied him in the truck to the sales barn at Toledo, Iowa, where the cattle were unloaded. There is further evidence that, while passing through New Sharon on the trip to Toledo, the defendant was seen in company with Phillips. While the man who received the stock at the sales barn at Toledo was not able to recognize the defendant as the person who came in the truck, he did testify that there was a man accompanying Phillips when the stock was delivered, and that this man told him to list the stock under the name Moore. Later, on the same day, and before the stock was sold, one of the men connected with the sales barn was told to change the name under which the stock was listed to Ferguson. This instruction was given by another son of the defendant, Cleo Ferguson, who was acting as one of the auctioneers at the sales barn. The eleven head of cattle which came to the sales barn in the Phillips truck were sold on that afternoon, four of them being bought by a man connected with the sales barn, by whom they were later sold to another party. The pasture in which the cattle were kept was some distance from the Braden house, and the cattle were not missed from the pasture until about the 17th day of June, when an investigation was started. Braden and the deputy sheriff of Mahaska county went to the sales barn at Toledo, and from there they were accompanied by a man connected with the sales barn to the places of the different farmers who had purchased the eleven head of cattle brought to the barn in the Phillips truck. Braden identified the cattle missing from his pasture among the cattle at the different farms visited, and all of the cattle thus identified by him were brought back to the sales barn and were later returned to the Braden farm. Settlement for the eleven head of cattle brought to the sales barn in the Phillips truck was made with Cleo Ferguson, a son of defendant. It is true, there was evidence presented by the defendant tending to show that he had black cattle among the cattle owned by him on and prior to the 10th day of June, and that he was not at Toledo, Iowa, at the time he had gone there in the Phillips truck. There was further evidence tending to show that the defendant was a man of good character, and also evidence tending to impeach the witness, Phillips.

Appellant contends that the trial court erred in overruling the defendant's motion for a new trial on the grounds that the verdict was not supported by the evidence and was contrary to the weight of the evidence, and in refusing to submit instructions requested by appellant directing the jury to return a verdict for the defendant. We do not think there can be any doubt that the evidence, as a whole, was abundantly sufficient to sustain the verdict rendered by the jury, and the trial court did not err in refusing the instructions requested and in submitting the case to the jury.

II.

Defendant relies for reversal upon error which he claims is found in the court's instruction on circumstantial evidence, and in the court's refusal to give an instruction requested by him. The instruction given by the court defined both direct and circumstantial evidence and explained the difference between them. It told the jury that, if the facts and circumstances shown by such circumstantial evidence were sufficient to satisfy their minds of the guilt of the defendant, beyond a reasonable doubt, such evidence would be sufficient to authorize the jury to render a verdict of guilty. It further told the jury that to warrant a conviction, however, the facts and circumstances proved must not only be consistent with defendant's guilt but they must be inconsistent with any rational theory of innocence. The instruction on circumstantial evidence asked by the defendant and refused by the court contained the following statement:

" To warrant a conviction on circumstantial evidence, each fact in the chain of circumstances necessary to be established to prove the guilt of the accused must be proven by competent evidence beyond a reasonable doubt, and all the facts and circumstances necessary to prove guilt must be connected with each other and with the main fact sought to be proved; and all the circumstances, taken together, must be of a conclusive nature, leading to a satisfactory conclusion and producing a moral certainty that the crime charged was committed, and that the accused committed it. It is not sufficient that they coincide with and render probable the guilt of the accused, but they must exclude every other reasonable hypothesis."

Another requested instruction asked the court to tell the jury that " each circumstance essential to the conclusion of the...