State v. Kelley
| Decision Date | 14 February 1922 |
| Docket Number | No. 34242.,34242. |
| Citation | 193 Iowa 62,186 N.W. 834 |
| Parties | STATE v. KELLEY. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Johnson County; F. F. Dawley, Judge.
The defendant was indicted for the crime of larceny. The court directed a verdict in favor of the defendant, and the State appeals. Reversed.Ben J. Gibson, Atty. Gen., and C. M. Miller, Co. Atty., and Frank F. Messer, Sp. Counsel, both of Iowa City, for the State.
Dutcher, Davis & Hambrecht, of Iowa City, for appellee.
The defendant was indicted by the grand jury of Johnson county, charged with the crime of larceny of two heifers, of the value of $140. It was alleged that the crime was committed on or about the 10th day of September, 1920.
The prosecuting witness, one Shaffer, is a farmer residing in Johnson county, Iowa. About a mile and a quarter from the farm where he lives Shaffer owned a 40-acre tract, which he used as pasture. This tract was adjacent to a tract owned by the defendant and some distance removed from the defendant'sbuildings. Shaffer's 40-acre tract was rectangular, and was divided into two pastures; the eastern portion, which was the larger, was known as the “cattle pasture,” and the western part as the “horse pasture.” The accompanying plat will aid in an understanding of the evidence in regard to the transactions in question:
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In September, 1920, Shaffer was pasturing 16 head of cattle in the cattle pasture, and a number of horses, but no cattle, in the horse pasture. It was the habit of Shaffer to visit these cattle from time to time to salt them and to observe their condition. He had done so about September 1st, and at that time there were 16 cattle in the lot. These cattle had been together for a long time. On September 12, 1920, Shaffer again returned to the cattle pasture, and when he counted his herd he found that two heifers were missing, one red and one black. He immediately made an investigation along the fences of the pasture, and failed to find any evidence indicating any place where the cattle had escaped from his field. Later the same day he returned to the pasture and examined the fences again, but discovered no place where it was apparent that any cattle had passed through. Later the same day he again returned to the pasture, and again made an examination in an endeavor to discover how the two heifers had escaped from the field. As shown on the plat, there is a small creek or slough north of the cattle pasture fence, and somewhat parallel thereto. North of this creek was the defendant's cornfield. It appears from the evidence that there was considerable slough grass and weeds along this creek and the space of ground between the cattle pasture fence and the south line of the defendant's field of corn. For some considerable distance from the northeast corner of the cattle pasture to the west the fence was in poor condition. The evidence showed that Shaffer examined the fence, and also the weeds and grass north thereof, and found no evidence that any cattle had passed from the pasture through the fence. There was a gate between the cattle pasture and the horse pasture near the southwest corner of the cattle pasture. On his last examination of the fences on the day in question, Shaffer discovered,according to his testimony, that the wire fastening this gate had been tampered with; that it was not fastened at the same place and in the same manner in which he had left it the last time he had visited the pasture.
It will be observed from the plat that there is a creek running across the horse pasture near the east side thereof, and there is a ford across the creek as indicated on the plat. Shaffer's evidence is to the effect that he followed along this creek, going northward, in making his examination, and when he reached this ford he discovered cattle tracks on the east bank, going in a northwesterly direction and passing up from the ford upon the sod of the pasture on the opposite side of the creek. He followed the general direction of these tracks, and went to the fence which separates the horse pasture from the west cornfield of the defendant, and claims that he then found red cattle hairs on a barb of the top wire of this fence. He also testified that at that time he observed that a staple had been removed from the post, and that the wire had been laid on a sliver on the side of the post. There is evidence to the effect that the condition of the rust indicated that the staple had been recently drawn. The witness testified that about five feet north of this place he found cattle tracks in defendant's field. He testified that it appeared as if the tracks at the ford, and also in the cornfield, had been made by two cattle. In the cornfield he also discovered the tracks of a horse with the cattle tracks,...
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