State v. Manly

• Decision Date: 18 November 1930
• Docket Number: No. 40510.,40510.
• Parties: STATE v. MANLY.
• Court: Iowa Supreme Court

211 Iowa 1043

233 N.W. 110

STATE

v.MANLY.

No. 40510.

Supreme Court of Iowa.

Nov. 18, 1930.

Appeal from District Court, Black Hawk County; R. W. Hasner, Judge.

This was a proceeding wherein the state charged the defendant with the larceny of certain hogs, and that the offender was twice previously convicted of felonies. After a trial to a jury, the defendant was convicted, and the district court sentenced him to serve a term of forty years in the Ft. Madison penitentiary. From this judgment, the defendant appeals.

Affirmed.C. A. Pratt, of Traer, and McCoy & Beecher, of Waterloo, for appellant.

John Fletcher, Atty. Gen., Neill Garrett, Asst. Atty. Gen., and John W. Gwynne, Co. Atty., of Waterloo, for the State.

KINDIG, J.

On April 2, 1930, a county attorney's information was presented and filed in the Black Hawk county district court, charging the defendant-appellant, Jacob Luther Manly, with the larceny of certain hogs, committed March 6, 1930, in the aforesaid county. Likewise, that information alleged that the appellant previously had been twice convicted of felonies, as follows: Breaking and entering a building April 3, 1922, and grand larceny May 21, 1926. There is no serious dispute here concerning the previous convictions. It is shown by the record that the appellant, prior to the present proceeding, had been twice convicted of felonies.

A reversal of the judgment in the district court, however, is asked by appellant, because: First, the state has not proven his guilt of the offense now charged; and, second, evidence was improperly admitted and the jury wrongfully instructed by the district court.

These disputed subjects will now receive consideration.

[1] I. First it is contended by the appellant that the state has failed to prove the larceny of the hogs; that is to say, appellant claims that under the record the hogs may have been lost, but there is no competent evidence that the missing animals were taken from their owner through larceny.

After reviewing the record, however, we are convinced that there was substantial evidence before the jury upon which that body could conclude, if so persuaded, that the hogs in question, as charged in the county attorney's information, were taken from the owner through larceny. Lloyd Lamb, a stock buyer, who lived in LaPorte City, owned 84 hogs. Those animals were kept by the owner in a secure pen at the stockyards in that place during the latter days of February and the first days of March, 1930. Mr. Lamb counted these hogs on Wednesday morning, March 5, and separated two cripples from the herd. Thereafter, he was through and near the pens all day, the following Thursday. Then on the succeeding Friday morning, March 7, while counting the hogs, Mr. Lamb found only 62 remaining, which, together with the two cripples, made a total of 64 hogs. Thus it appears that 20 of the animals were missing. While Mr. Lamb did not see a thief actually steal the hogs, yet he testified during the trial that he did not sell the 20 missing hogs, nor did this owner, according to his testimony, give them away or take any out of the pen. Moreover, such owner further testified that the hogs which had disappeared were not taken with his permission or consent. Under that record the jury were warranted in finding that larceny had been committed. In other words, the jury were justified, if they so elected, in finding that the hogs in question were stolen by some one. State v. Rodman, 62 Iowa, 456, 17 N. W. 663, 664. Therein we said: “It is insisted that the evidence fails to support the verdict, in that it is not shown that the horse in question [the one involved in the larceny] was stolen. The evidence shows that the horse was put in a stable at night, and next morning was gone. Counsel insist that as the evidence fails to show the animal was secured in the stable, it might have escaped. The evidence, as counsel argue, fails in not showing that the horse was in some manner ‘fastened in the stable.’ The evidence shows, prima facie, at least, that the animal was stolen.”

[2] Circumstantial evidence may be sufficient to establish the corpus delicti. State v. Solomon, 203 Iowa, 954, 210 N. W. 448. Hence, under all the record, appellant was not entitled to a directed verdict on the theory that there was no proof of the corpus delicti.

[3] II. But appellant says that, even though the hogs were stolen, the state has not proven him to be the guilty party. Such statement is made, not upon the theory that the state furnished no testimony to substantiate appellant's conviction, but rather because whatever proof was presented consists of weak and insufficient evidence. So he contends that, because of the whole record's insufficiency, this court can set aside the jury's verdict. A more liberal rule is applied to a criminal than to a civil case in setting aside the jury's verdict; for it is true that this court will interfere more readily with the verdict in a criminal proceeding, where the same is contrary to the evidence, than in a civil action under the same circumstances. State v. McKenzie, 204 Iowa, 833, 216 N. W. 29.

[4][5] On the other hand, if there is substantial and sufficient evidence supporting the jury's finding that the appellant did commit the larceny, this court will not interfere with the verdict. To put the thought in another way, this court will not substitute its judgment concerning the weight of the evidence for that of the jury. Nevertheless, if it is deemed by the court that the verdict is not supported by the entire record, then the jury's finding may be set aside. State v. Glendening, 205 Iowa, 1043, 218 N. W. 939;State v. Cordaro, 206 Iowa, 347, 218 N. W. 477.

[6] Tested by those underlying principles, the sufficiency of the evidence presented will now be considered. Among the 20 hogs stolen, there was one or more blue in color. This color is brought about by a cross between a Hampshire and a white hog. They are rare and extraordinary in color. Other hogs among the 20 were red “mangy.” Also the stolen herd included, in addition to the others, black and white animals. Mr. Jahnke, a stock buyer, inspected Lamb's hogs at LaPorte City about February 27 previous to the larceny. Upon that occasion, Mr. Jahnke noticed the blue hogs, as well as those which were red “mangy.” He observed the size and the weight. J. E. O'Connor was buying hogs at Readlyn for Mr. Jahnke. While O'Connor was out in the country, presumably on a hog buying trip, Jahnke, on March 6 or 7, went to the stockyards at Readlyn and there observed the blue hogs as well as the red “mangy” animals, together with the others colored black and white. Their size and weight closely coincided with those of the hogs seen in Mr. Lamb's possession at LaPorte City the previous February 27. So striking was the identification of these hogs that Mr. Jahnke recognized them as being the ones previously seen in Mr. Lamb's yards at LaPorte City.

Nothing, however, was said by Jahnke to Lamb concerning this, because the former did not know at that time that the hogs were stolen. Not understanding that the animals had come to his yards at Readlyn through theft, Jahnke shipped them to Chicago before he learned of Mr. Lamb's loss. After learning of the larceny, Jahnke and Lamb instituted an investigation and discovered that the 20 hogs came to the stockyards at Readlyn through some one purporting to be E. C. Johnson. O'Connor, acting for Jahnke, gave such E. C. Johnson a check in payment of the hogs. According to O'Connor, the hogs were delivered at 4 o'clock in the afternoon of March 6. Whoever sold those hogs to Jahnke through O'Connor is alleged by the latter to have inquired concerning the market for such hogs about two days before the delivery. It is alleged by O'Connor that he knew Johnson and identified him as the man who delivered the hogs and received the check therefor. The man pretending to be Johnson had previously sold hogs to O'Connor. At the time the animals in question were delivered, it seems that O'Connor had no blank checks at the stockyards and asked Johnson to call at the former's home that night in order that the check might be written upon blanks kept at the home. For the purpose of obtaining the desired check, Johnson went to O'Connor's home March 7 and received the check from the former. When at the O'Connor home, Johnson was seen by William O'Connor, aged 13, a son of the stock buyer.

Although Jahnke's stock buyer refused to identify Johnson as the appellant, Manly, yet he said there was resemblance, except that...