State v. Hatters

• Citation: 184 Iowa 878,169 N.W. 113
• Decision Date: 25 October 1918
• Docket Number: No. 32166.,32166.
• Parties: STATE v. HATTERS.
• Court: United States State Supreme Court of Iowa

184 Iowa 878

169 N.W. 113

STATE

v.HATTERS.

No. 32166.

Supreme Court of Iowa.

Oct. 25, 1918.

Appeal from District Court, Polk County; Charles Hutchinson, Judge.

Conviction of larceny on an indictment charging that defendant and two others stole an automobile. Affirmed.F. T. Van Liew, of Des Moines, for appellant.

H. M. Havner, Atty. Gen., F. C. Davidson, Asst. Atty. Gen., and Ward C. Henry, Co. Atty., and A. G. Rippey, Asst. Co. Atty., both of Des Moines, for the State.

SALINGER, J.

[1] I. The appellant contends the evidence is insufficient. The point does not require serious consideration. We shall not particularize. It suffices to say that, while there is not direct testimony, there was an abundance to sustain the verdict. Among other things, defendant, according to his own story, left Des Moines late at night in an automobile that he claims belonged to a friend of his, and left for Perry without any reason for going; and the explanation attempted for the trip of itself is so unreasonable as to be some evidence of guilt. Again, the stolen automobile was found near Perry in a damaged condition, and something occurred on the trip that would damage an automobile. Still again, the defendant and others with him went to a hotel in Perry late at night, after they had taken care of this car, and there registered under an assumed name. Indeed, what is really claimed is that the evidence is insufficient, because the testimony of certain of the witnesses should not have been received, and the real question is whether this point is well taken. It seems that at one time the trial of this cause was begun. The two witnesses in question testified on that trial, and their testimony was preserved and properly transcripted. In the course of said trial a witness for the state became ill, and the state applied for and obtained a continuance on that account. Said transcript was used on trial in which defendant was convicted, and appellant contends that receiving the same denied him his constitutional right to be confronted with the witnesses against him. We have held to the contrary. See State v. Brown, 152 Iowa, 427, 132 N. W. 862, and State v. Thomas, 158 Iowa, 687, 138 N. W. 864.

[2] It is said that the motion for continuance should not have been sustained, in that the motion was not made as soon as it became certain that it would need to be made, and that the facts set forth in the application are irrelevant and immaterial. It appears that the trial of which continuance was had was on the 28th of May, 1917; that among the witnesses then present was one Pomeroy; that on the application of defendant the cause was continued until the 31st of May, 1917; that on account thereof the witnesses were permitted to leave the courtroom and ordered to report again on the morning of May 31st; that Pomeroy did not report, because he was too ill. Then comes a recital of what Pomeroy would testify to, and it is material matter. The reason for Pomeroy's absence was not discovered until the next day, June 1, 1917. It does not appear just when the state's motion for continuance was filed, a matter that was vital for appellant to show on the claim that its filing was not timely, for its sustaining is a holding that it was timely. All that appears on this point is that one affidavit in support of the state's motion was sworn to on the 4th of June, 1917. We are of opinion that the appellant has not established either...