State v. Jackson

• Decision Date: 06 March 1928
• Docket Number: 38493
• Citation: 218 N.W. 273,205 Iowa 592
• Parties: STATE OF IOWA, Appellee, v. A. D. JACKSON, Appellant
• Court: Iowa Supreme Court

218 N.W. 273

205 Iowa 592

STATE OF IOWA, Appellee, v. A. D. JACKSON, Appellant

No. 38493

Supreme Court of Iowa, Des Moines

March 6, 1928

Appeal from Polk District Court.--FRANK S. SHANKLAND, Judge.

The defendant was convicted of the crime of breaking and entering, and because of alleged error in the instructions and submission of the cause to the jury, this appeal was taken.

Affirmed.

J. B Morris and E. D. Marshall, for appellant.

John Fletcher, Attorney-general, Neill Garrett, Assistant Attorney-general, and Mason Ladd, Assistant County Attorney for appellee.

KINDIG J. STEVENS, C. J., and EVANS, FAVILLE, and WAGNER, JJ., concur.

OPINION

KINDIG, J.

After being duly indicted, the defendant appellant was tried to a jury, under a plea of "not guilty," and convicted, upon sufficient evidence to sustain the verdict. In fact, he admitted having possession of at least some of the stolen merchandise, but claimed that he did not know from where it came, explaining that the personal property was delivered into his custody by one Henry Thomas, who, it was asserted, "broke" into and "entered" the store and feloniously took the goods therefrom.

I. Objection is made to the introduction of evidence and certain charges submitted by the court to the jury thereunder. However, no exceptions were taken by the defendant to either. Therefore, he cannot complain thereof here; so there is nothing for us to consider in this regard. We said in State v. Vandewater, 203 Iowa 94, 212 N.W. 339:

"The record of the trial is lacking in proper exceptions to evidence and instructions, and the instant motion for new trial did not serve the function of an exception. The defendant in a criminal case waives error on appeal in every instance where a proper exception is not taken below. State v. Schwab, 112 Iowa 666, 84 N.W. 944. Counsel in a criminal case is under obligation to make his objections as specific and definite as is required in a civil case, in order to present a question of law for consideration upon appeal. State v. Barr, 123 Iowa 139, 98 N.W. 595."

II. Complaint is next made because the court gave the jury the following instruction:

"In this connection you are instructed that the unexplained possession of property recently stolen, taken in connection with the proof of the wrongful taking and carrying away, tends to establish the guilt of the person in whose possession the property is found, and is a circumstance pointing to the guilt of the accused, and is sufficient to support a verdict of guilt, unless from the explanation given by the defendant of such possession of said property, if he was in possession thereof, and all the attendant facts and circumstances on the whole case, you entertain a reasonable doubt of the guilt of the defendant."

Basis for this "objection" is founded upon the rule announced in State v. Shaffer, 59 Iowa 290, 292, 13 N.W. 306, State v. Brady, 121 Iowa 561, 97 N.W. 62, and State v. Harris, 194 Iowa 1304, 191 N.W. 83. Those decisions determine a principle not violated in the "instruction given" by the trial court here. To illustrate, in State v. Harris, supra, the court told the jury "the burden rests upon him [the defendant] to show that he came into the possession of such property honestly * * *." And likewise, in the Brady and Shaffer cases, the "burden of proof" was cast upon the defendant.

That was not done in the case at bar, but rather, such "burden" was confined to the State, and the jury were told that, in the sovereign's attempt to furnish the proof, assistance therein could be found in the circumstance concerning the possession of recently stolen property, while the reasonable-doubt rule was preserved. This is in harmony with the theory explained in State v. Fortune, 196 Iowa 995, 195 N.W. 740, where it was aptly said:

"In the instant case the jury was instructed, in substance, that the possession of goods recently stolen from a building by breaking and entering, without reasonable explanation that the goods were...