State v. Gulliver
| Decision Date | 16 September 1913 |
| Parties | THE STATE OF IOWA, Appellee, v. GLENN GULLIVER, Appellant |
| Court | Iowa Supreme Court |
Appeal from Mitchell District Court.--HON. C. H. KELLY, Judge.
DEFENDANT was convicted upon a charge of assault with intent to rob and appeals. Affirmed.
Affirmed.
Wm. H Salisbury, for appellant.
Geo Cosson, Attorney General, John Fletcher, Assistant Attorney General, A. A. Kugler, County Attorney, and A. B. Lovejoy, for the State.
EVANS, J., absent.
Orchard, the scene of the alleged crime, is situated in Mitchell county, Iowa about five miles from Osage, the county-seat. At the time in question a banking business was being conducted at that village under the immediate charge of E. O. Clapper as cashier. The defendant, Glenn Gulliver, is a young man of twenty-two years of age, and for the larger portion of his life had been a resident of Mitchell county, having made his home at Orchard and later at Osage, where he attended high school, from which he graduated about the year 1906. So far as appears he had maintained a reputable character in the community where he was known. After leaving school he found employment as advance agent and later as business manager of a minor theatrical company or troupe traveling from Chicago, Ill. During this period he frequently returned to Mitchell for periods which sometimes extended into weeks or months and on one or more occasions assisted some school or society in preparing and presenting a dramatic performance. It follows from these circumstances that he was familiarly, or at least casually, known to many of the people of that county. He is, moreover, a person of noticeable appearance, being six feet two and one-half inches in height but quite slender, weighing only about one hundred and forty pounds. The cashier, Clapper, though older than defendant, is still a young man. He had lived in Mitchell county for many years, and, during part of the time when defendant was attending high school in Osage, Clapper was a student in a seminary on the opposite side of the street. Both were engaged in various employments about town. Defendant says they were personally acquainted, but this the cashier denies, and says that he has no remembrance of defendant at all prior to the circumstances attending and immediately preceding the offense charged in the indictment. Clapper is less than six feet in height and weighs about two hundred pounds.
On Thursday, December 14, 1911, a person unknown to the cashier came into the bank introducing himself by the name of Gains and claiming to be a sales agent for a manufacturer of gasoline engines at Waterloo, Iowa. He made inquiries concerning the financial standing of certain farmers residing in the neighborhood and mentioned the names of persons to whom he hoped or expected to sell engines. He spent a large part of the afternoon in the bank, and, the weather being cold, Clapper invited him into the office back of the counter, where he sat most of the time carrying on a general conversation with the cashier and his wife, who was also present. On the afternoon of the following day he returned to the bank reporting alleged negotiations for the sale of engines and was again invited into the office, where he remained until the usual hour for closing--about 4:30 p. m. Leaving him sitting by the stove, Clapper turned to the money drawer and was engaged in gathering up its contents preparatory to placing them in the safe, when Gains, without speaking or making any demand, assaulted him, striking him twice upon the back of the head. Not being disabled by the blows, Clapper turned upon his assailant, who immediately fled and disappeared from the village. So far as seen by the cashier, Gains was not armed with any weapon, though the wounds alleged to have resulted from the blows would seem to indicate something more than a stroke with the naked fist. That the assault was made with intent to rob the cashier or the bank is inferred only from the fact that it was made in the bank upon the person in charge thereof, and the further fact that no other known motive or explanation is suggested. On the following day, suspicion having been directed against the defendant as the perpetrator of the offense, he was arrested at Osage. His indictment, trial, and conviction followed.
The record presents some remarkable features. The trial was contested with great stubbornness on both sides and occupied the attention of the court and jury ten days. More than one hundred witnesses were examined at great length. The printed abstracts aggregate nearly one thousand one hundred pages, to which are added eight hundred and fifty pages of argument by counsel. The motion for new trial twice amended assigns thirty or more grounds thereof and is supported and resisted by an array of more than fifty exhibits. In this court ninety-one alleged errors are assigned and argued with much thoroughness. These things are here mentioned, not by the way of criticism, but to make clear the manifest impossibility of compressing within the allowable limits of an opinion anything like a full or complete statement of the testimony or of supplementing such statement by a complete review of the arguments of counsel. We shall therefore, when possible, avoid all reference to the testimony of individual witnesses and speak only of facts, inferences, and conclusions which in our judgment the jury could properly have drawn from the evidence in its entirety and discuss only those legal propositions which appear to us controlling upon the disposition of the appeal.
I. Has the verdict of the jury sufficient support in the evidence?
While other errors are assigned and insisted upon in behalf of the appellant, it is argued with great confidence and much force that defendant's guilt has not been established by such clear and satisfactory proof as is necessary to sustain a conviction. In this, as in most criminal cases--the corpus delicti being assumed or established--the contest before the jury was centralized upon the identity of the accused with the perpetrator of the offense, and this in turn was made to rest upon the more or less positive testimony offered by the state which was met by his denial of guilt supplemented and supported by evidence of an alibi. This defense not unusually gives rise to sharp and irreconcilable conflict in evidence, but the books contain the report of very few cases in which such conflict is more radical and more difficult to reconcile with the charitable presumption of good faith and candor on the part of all the witnesses than is here presented.
The alibi relied upon by the defendant differs from the ordinary case in this, that it involves the question of his actual location not merely upon the day of the crime but upon the previous day as well. The theory of the state's case is that the man known as Gains, who assaulted Clapper in the bank on Friday, December 15, 1912, was in the same place the day before, spending a large part of the time in the same bank, and that Gains and the defendant are one and the same person. It follows, of course, that even if defendant was in Orchard on Friday afternoon, or so near that he could have been present at the scene of the crime, his alibi may yet be sufficiently established upon proof that on Thursday afternoon when Gains was visiting the bank defendant was himself so far distant from Orchard as to render his identity with Gains impossible, or at least sufficient to raise a reasonable doubt in the minds of the jury. The theory of the state is supported with varying degrees of positiveness by several witnesses who swear to seeing defendant in Orchard on both Thursday and Friday. Some of them say they saw him in the bank on Thursday, and others say they saw him there still earlier in the week, while Clapper and wife both testify with much assurance that defendant is the man whom they knew as Gains who was in the bank on both days.
It is fair to say that the effect of the testimony of some of these witnesses was to some extent weakened on cross-examination. None of them except Clapper and his wife claim to have had any conversation with the person whom they recognized as defendant, and several of them betray some degree of uncertainty in their conclusions or in the accuracy of their memories. The defendant concedes that he was in Orchard for a very brief interval on Friday, but returned to Osage about noon, staying there the entire remainder of the day. He insists, however, and in this he is supported by a large number of witnesses, that not only was he in Osage at the hour when the crime was committed, but that he was in the city of Chicago, Ill during all the earlier part of the week until an early hour of Thursday morning, when he took a westward bound train on the Illinois Central Railway, purchasing transportation to Charles City, Iowa where he had a business errand. According to his story, he met one or more acquaintances on the train, took breakfast at Waterloo, Iowa where he met other acquaintances, and thence passed on to Charles City, where he arrived Thursday noon. He says he remained in Charles City all that afternoon, meeting and talking with many different persons to whom he was well known and taking an early evening train arrived at the home of his mother in Osage about 8 o'clock. This story in most of its essential details is strongly corroborated by several different witnesses in Chicago, who say as of their own knowledge that defendant was in that city all of the week of December 14 and 15, 1911, until after midnight of Wednesday; by several more who saw him on the train or at Waterloo on...
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