State v. Hester
| Decision Date | 03 April 1928 |
| Docket Number | 38693 |
| Parties | STATE OF IOWA, Appellee, v. EDITH HESTER et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Harrison District Court.--W. C. RATCLIFF, Judge.
The defendants were convicted of the crime of larceny of chickens from a coop or inclosure, and they appeal.
Affirmed.
H. L Robertson and William P. Welch, for appellants.
John Fletcher, Attorney-general, and Roy Havens, County Attorney for appellee.
The appellants are two sisters and a brother. At the time of the larceny, the defendants were aged, respectively, Edith Hester, 16, Darrell Hester, 21, and Bernice Peterson, 25. Bernice Peterson was divorced from her husband, and the three children lived with their mother, four miles northwest of Modale. After the time of the commission of the crime, Bernice Peterson married a man by the name of McKay. The three children and William Hillman were jointly indicted for the larceny of chickens from a coop, which larceny occurred on the evening of June 5, 1926. The three appellants had a joint trial, were each found guilty, and the court pronounced judgment upon Bernice Peterson McKay of confinement in the women's reformatory at Rockwell City for a period not exceeding two years. The judgment upon Darrell Hester was that he be confined in the reformatory at Anamosa, for a period not exceeding two years; and as to Edith Hester, the cause was transferred to the juvenile court, and she was ordered confined in the girls' industrial school at Mitchellville until she attain the age of 21 years, unless sooner legally discharged.
At the close of the State's evidence, the defendants made a motion for directed verdict, which was renewed at the close of all the evidence, which motions were by the court overruled.
Only two questions are presented on this appeal: First, the sufficiency of the evidence to warrant a conviction, and second, the claim of the appellants that the punishment is excessive.
The Parker family consists of Mr. and Mrs. Parker and their daughter, Marjorie, eight years of age. On the evening of June 5, 1926, the Parker family was absent from home until midnight or later. Mrs. Parker was the owner of 96 chickens about a month old, and all except approximately a half dozen of same were of the Buff Orpington breed, the remainder being mixed. These chickens, together with ducks, had at times been fed buttermilk, and the Parkers testified that during the evening they had fed them buttermilk, which was spattered by the ducks and otherwise over the chickens, and that the buttermilk, with the dust settling thereon, had dried on the chickens, until in this manner they were quite distinguishable. At the time of the Parkers' departure from the home, these 96 chickens were left in a box on the front porch. The yard was inclosed by a fence, and the front gate closed. At the time of their return that night, the front gate was open, and the box and chickens therein were gone.
The Parker home is situated in the northwest corner of two crossroads, and three miles directly west of the town of Modale. The Hester home, four miles northwest of Modale, is situated one mile north, one mile east, and then one mile north of the Parker home. The direct route from the Hester home to Modale is to travel one mile south therefrom, then one mile east, then one mile south, and one mile east into Modale. There is no dispute that the three defendants and Hillman were at Modale sometime before midnight of June 5th. They were traveling in an old rickety buggy, to which were hitched a mule and a horse, one of the parties riding another horse. The three defendants testified that they left the Hester home between 8 and 9 o'clock, and went the direct route, hereinbefore mentioned, to Modale, arriving there between 9 and 10 o'clock.
The Parkers arose early on the morning of June 6th, and in going to the road in front of the house, ascertained tracks of a buggy, and apparently those of a mule and a horse, which came from the north and went in an easterly direction toward Modale. They also observed, in various portions of the highway, tracks apparently of another horse, coming from the same direction, and apparently bound for the same destination. They got in their car and pursued the backward course of the tracks to the Hester home. After obtaining a search warrant, the three Parkers and two others, including the marshal of Modale, appeared at the Hester home, and there, in a shed, they found 92 young living chickens penned up in the corner. There were four dead chickens lying in close proximity, making the 96 which the Parkers claimed. The Parkers swore positively to the identity of said chickens, by reason of their general appearance, which answered the description of their chickens, and especially by reason of the marks thereon from the feeding of the buttermilk hereinbefore mentioned. The little girl was positive in her identification of some of the chickens, which she called her "pets."
A neighbor living one mile north of the Parker home testified that he saw such an outfit as was driven by the Hesters and Hillman pass his house in the direction of the Parker home about 9:30 in the evening, and that he recognized the voice of one of the crew as being that of the defendant Darrell Hester.
Another witness testified that, about 10:30 that night, he saw the defendants about 40 rods east of the Parker place,--Hillman riding a horse, the girls in the front part of the buggy, and a boy in the back part, sitting on a kind of a box.
Another witness testified that, about 10:40 P. M., he saw the defendants and Bill Hillman in the road at the corner one mile west from Modale, not traveling, but standing there in the road; that he flashed his light upon them and...
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