State v. Jordan

• Decision Date: 12 October 1886
• Citation: 69 Iowa 506,29 N.W. 430
• Parties: STATE v. JORDAN.
• Court: Iowa Supreme Court

69 Iowa 506

29 N.W. 430

STATE

v.JORDAN.

Supreme Court of Iowa.

October 12, 1886.

Appeal from Sac district court.

The defendant was indicted and tried for the crime of larceny in stealing two colts, the property of one Stewart. Having been convicted, he appeals to this court.Ed. R. Duffie and S. M. Elwood, for appellant.

A. J. Baker, Atty. Gen., for the State.

ADAMS, C. J.

1. The evidence showed that the colts in question disappeared from the pasture of their owner, Stewart, in Sac county, and a few days later were in the possession of the defendant and one Thompson, in Crawford county, and were exchanged by the defendant to one Evarts for a bay mare and $25. Just before the colts were taken to Evarts they had been in the pasture of one Myers, and were taken therefrom to Evarts by the defendant and Thompson. Who put the colts in Myers' pasture does not appear. The defendant testified that they were there when he first saw them. His claim is that he could have shown, if he had been allowed, that Thompson, who was an old acquaintance, represented that he was the owner of the colts; that he went along with him when the colts were taken to Evarts, which was on the way to where Thompson lived, but, on seeing Evarts, the defendant, acting for Thompson, traded the colts to Evarts for the mare. For the purpose of explaining such possession as he had, which appears at most to have been only a joint possession with Thompson, he undertook to state that Thompson claimed to be the owner, and other things which Thompson said. But the court excluded all evidence of that kind on an objection being made that such evidence was hearsay. The rulings of the court in excluding the evidence is assigned as error.

It appears to us that if the defendant derived such possession as he had from Thompson, and the latter claimed to be the owner, such fact would have tended to explain the defendant's possession. The words of a person may be proven by a person who heard them, where the speaking of the words, as in this case, and not the truth of them, is the material fact. Such evidence is not hearsay evidence. That a person charged with larceny may explain his possession of the stolen property by showing what was said to him at the time he acquired possession, was held in State v. Kelly, 57 Iowa, 647, S. C. 11 N. W. Rep. 635. We think that the court erred in excluding the evidence.

2. The court in one of its instructions said to the jury: “If it [the defendant's...