State v. Marshall

• Decision Date: 07 April 1898
• Citation: 105 Iowa 38,74 N.W. 763
• Parties: STATE v. MARSHALL.
• Court: Iowa Supreme Court

105 Iowa 38

74 N.W. 763

STATE

v.MARSHALL.

Supreme Court of Iowa.

April 7, 1898.

Appeal from district court, Benton county; Obed Caswell, Judge.

The defendant was accused and convicted of the crime of burglary, and, from judgment of imprisonment in the penitentiary for a period of 18 months, he appeals. Affirmed.Tom H. Milner, for appellant.

Milton Remley, Atty. Gen., and Jessie A. Miller, for the State.

LADD, J.

The indictment charges the defendant with breaking and entering the store building of Cady & Anderson in the nighttime of June 12, 1897, with intent to commit larceny. At that time he was in the employment of Robinson, who kept a bakery in the building next to that of Cady & Anderson, and the basement of the two buildings were separated by a board partition, in which there was a window. This window had been securely nailed in prior to the night in question, and after that is shown to have been fastened in a different manner. The defendant boxed and shipped several dress patterns, lining, hose, and handkerchiefs, and other articles to Naomi Houston, his then fiancée, at Marion, on the morning of the second day after the alleged larceny. These goods were identified by Anderson as the property of his firm, and as having been stolen. Maggie McKee, who usually had charge of the dry-goods department, says she missed goods on the 15th of June, and found those on the shelves jammed in, and not properly folded. Two other clerks sometimes sold merchandise from this department. A screw-driver at Robinson's was shown to fit the marks made on the partition and window in changing it. The defendant had a key to Robinson's bakery. In explaining his possession, he testified that early in the morning, after the goods were taken, two strangers entered the bakery, and offered to sell a watch and chain, and, upon his refusal to buy, stated they wished to obtain something to eat, and offered to sell the goods in controversy for two dollars; that, when they unrolled them on the counter, he purchased without further examination. The defendant's father and Husted state they saw two strangers leaving the bakery at about that time. The defendant had previously promised to purchase his fiancée goods such as those in controversy. With this condition of the record, it seems hardly necessary to say that the verdict is sustained by the evidence. That the other clerks might have sold the goods was a circumstance for the consideration of the jury, but not controlling when viewed in the light of the established facts. The claim of a purchase from strangers is one very commonly made by those found in possession of stolen property, and is usually, as in this case, discredited by the attending circumstances. Had there been any such a purchase, Marshall would have examined the goods, and told his employer. The coincidence of the entire strangers bringing to him, for a trifling sum, the particular goods requested by his betrothed, is increditable. Similar occurrences are frequent in fable, but seldom, if ever, happen in real life. The extreme improbability of his account was such that, although undisputed, its truthfulness was for the determination of the jury.

2. It appeared on the trial that only one of the witnesses testified before the grand jury, and no notice that the state would use others was given defendant. The county attorney was called as a witness, and testified, without objection, that the defendant was indicted in part upon the minutes of the evidence taken before the committing magistrate, and that the substance of this was attached as minutes to the indictment. The defendant moved to strike out this testimony, because the method of proof was not proper or competent, and the matters could only be established by the record, and also because the name of this witness was not indorsed on the indictment, and no noticewas given that he would be used. This motion was overruled. The objection to the witness came too late. State v. Hurd (Iowa) 70 N. W. 613. It seems the trial judge propounded the questions to the witness, and the defendant's counsel, in an affidavit attached to the motion for new trial, excused himself for not making proper objections on the score of deference to the court. The authorities are agreed that the judge may ask questions leading in character. Huffman v. Cauble, 86 Ind. 591;Com. v. Galavan, 9 Allen, 271. See Sessions v. Rice, 70 Iowa, 306, 30 N. W. 735. But in other respects his examination of a witness is subject to the same legal objections as may be interposed when conducted by a party or his attorney. People v. Lacoste, 37 N. Y. 192;Sparks v. State, 59 Ala. 82. But we think the rule which requires a party to make his objection to the questions when asked, and precludes him from awaiting the answer of the witness, and then moving to strike them out, ought not to prevail when the examination is conducted by the court. The jurors naturally assume the interrogatories of the presiding judge to be proper, as they are presumed to be, and objections made thereto by counsel in the nature of mere interactions. Often the character of the case is such that the attorney might otherwise be compelled to elect whether he will save his record or brook the ill will of the jury. Besides, it is always embarrassing to persist in interposing objections, especially in some courts, although one might believe the examination improper or irrelevant to the issues, and prejudicial to his client. It was the privilege of defendant to either make objections to the questions of the court when asked, or move to strike out the...