State v. Maher

• Decision Date: 08 March 1888
• Parties: THE STATE v. MAHER et al
• Court: Iowa Supreme Court

37 N.W. 2

74 Iowa 77

THE STATE v. MAHER et al

Supreme Court of Iowa, Des Moines

March 8, 1888

Decided December, 1887

Appeal from Polk District Court.--HON. JOSIAH

AFFIRMED.

McHenry McHenry & McHenry, for appellant.

A. J Baker, Attorney General, for the State.

OPINION

BECK, J.

The objections to the conviction of defendant will be considered in the order of their discussion by his counsel.

I. The attorney for the prosecution, when the case was called for trial in the court below, moved for a continuance, or that the trial be set down for a later day of the term, on the ground that a witness examined before the grand jury was not in attendance. The application was supported by the affidavit of the attorney, showing the fact that he had been unable to procure the attendance of the witness and that he expected to procure his attendance, and showing the facts he expected to prove by him. The motion was sustained so far as to pass the case for three days. The action of the court is not shown to be erroneous. The time during the term at which a defendant shall be put upon his trial rests wholly upon the sound discretion of the judge. He has such full knowledge of the condition of the business of the court, and the facts upon which the term of trial ought to be fixed, that we cannot interfere unless an abuse of discretion, and prejudice resulting to defendant, be shown. There is nothing before us justifying even a suspicion of either.

II. A witness, called by the state in rebuttal, was permitted to testify, against defendant's objection, that he had seen defendant on the night of the larceny near the place where it was committed and heard two shots fired, and to some other circumstances connected therewith. Counsel for the state insist that this evidence, being in rebuttal, was erroneously received. The defense relied upon was an alibi, and, as we understand the case, the evidence in question was admitted to rebut defendant's evidence in support of this defense. It cannot be doubted that the state is not required to introduce evidence in chief which shall contradict testimony afterwards given by the defendant, tending to show that, at the time of the crime, he was at another place. If this were so, the state would be bound to contradict testimony of the defendant before it was given and before it was known what would be given upon the defense, or, in fact, that any evidence at all would be given in support of it, or that it would even be made and relied upon. It is plain that the state may in rebuttal support the proof before given of defendant's presence at the time and place of the crime, and contradict testimony tending to prove an alibi. The statements of the witness as to shots fired and other matters were properly permitted, as they were circumstances connected with the fact stated that he had seen the defendant at the time, and they served to identify the time and place, and support the testimony of the witness. Circumstances of this kind are proper to test the memory of the witness, to fix his attention, and to verify the truth of his statements. We conclude that the evidence was rightly admitted.

III. The defendant introduced evidence tending to show that the house where the crime was committed was of bad reputation. In an instruction the jury were directed that this evidence could be considered to determine whether the larceny was committed with violence, or whether the violence was for some other purpose. Counsel objected to the instruction, on the ground that the evidence was admitted to affect the credibility of the witness. It is true that the counsel, when the evidence was offered, claimed that it was introduced for that purpose, and the court overruled an objection thereto by the state. But the reason of the admission of the evidence given by the court was substantially the same as that stated in the instruction. It does not appear to be erroneous, and we will not reverse for the reason that the jury were not informed, in connection with it, that they should consider it to determine the credibility of the witness.

IV. It is urged that the verdict is contrary to the evidence and instructions. We think differently. Certain it is that the verdict is not so unsupported by the evidence as to authorize us to interfere.

V. The court below, in one or more instructions, directed the jury in substance, that the alibi relied upon as a defense must be established, if at all, by the preponderance of the evidence. Another instruction directs the jury, in effect, that if upon the whole evidence, including that tending to establish the alibi, they entertained a reasonable doubt, they should acquit. Counsel for defendant...