State v. Graham

• Decision Date: 14 December 1926
• Docket Number: No. 37238.,37238.
• Citation: 211 N.W. 244,203 Iowa 532
• Parties: STATE v. GRAHAM.
• Court: Iowa Supreme Court

203 Iowa 532

211 N.W. 244

STATE

v.GRAHAM.

No. 37238.

Supreme Court of Iowa.

Dec. 14, 1926.

Appeal from District Court, Polk County; O. S. Franklin, Judge.

Appellant was jointly indicted with one Frank Brown for the larceny of poultry, under section 13015, Code 1924. Appellant was tried separately, and the jury returned a verdict of guilty, and judgment was pronounced accordingly. Graham appeals. Affirmed.E. S. Thayer, of Des Moines, for appellant.

Ben J. Gibson, Atty. Gen., and Earl F. Wisdom, Asst. Atty. Gen., for the State.

ALBERT, J.

[1] On the night of October 7, 1924, one Branscomb lost 53 chickens from an inclosed pen on his premises. The following day Branscomb identified 18 chickens at the Swift & Co. poultry house in Des Moines as a part of his flock which had been stolen. These chickens claimed by Branscomb had been sold by appellant to Swift & Co. in Des Moines on the same day. Appellant denies that he stole the chickens, and says that he and Brown bought them from an unknown man and paid cash for them. In the testimony Branscomb identified the chickens, one of which he particularly identified by reason of green paint on its wings. At a previous date he bought these chickens from one Hilleary, who as a witness identifies this particular chicken by reason of the same identification mark. Other witnesses, especially on behalf of the defendant, deny that there was any green paint on the wings of any chicken among those in controversy. This of course makes this question of identification one of fact for the jury.

[2][3] Witness Branscomb testified on cross-examination that he was still possessed of the chicken that was marked with the green paint. The larceny is alleged to have occurred on or about the 7th day of October, 1924. Indictment was returned on the 18th day of November, 1924, and Graham was put on trial on the 25th day of May, 1925. After having testified as above stated that he was still possessed of the chicken in controversy, appellant requested that the witness Branscomb be required to produce this particular chicken in court. This request was refused by the court. While it is true that, had the chicken in question been presented and offered in evidence, it would have been admissible, yet demonstrative evidence of this kind is largely, if not wholly, within the discretion of the court, and a refusal of the court to admit the same is not ordinarily held to be error. This must be especially true when it would call for a delay in the trial for the witness to produce the chicken. We do not feel, under these circumstances, that the court abused its discretion in refusing to require the witness to produce the chicken in controversy.

[4] Welch, a detective in the police department, testified that he and Clarkson, another officer, went into a house where Brown and Graham were and found Clarkson scuffling with Graham, and that Graham was “trying to get away from Clarkson.” This last statement of the witness that Graham was “trying to get away from Clarkson” was objected to as calling for a conclusion and opinion of the witness. While in one sense this is a conclusion, at the same time it is a permissible conclusion, because the witness would be unable to detail the movements of the respective parties in such a way as to convey definitely the idea, and therefore it is unobjectionable.

[5] During the examination of the witness Clarkson in behalf of the state, he was asked by the prosecuting attorney with reference to the coindictee, Brown, this question: “He has been tried before; is that right?” Over objection the witness answered, “Yes.” The county attorney then asked, “Where is Brown now?” An objection to this question...