State v. McCracken

• Decision Date: 13 June 1885
• Citation: 24 N.W. 43,66 Iowa 569
• Parties: STATE v. MCCRACKEN.
• Court: Iowa Supreme Court

66 Iowa 569

24 N.W. 43

STATE

v.MCCRACKEN.

Supreme Court of Iowa.

Filed June 13, 1885.

Appeal from Marshall district court.

The defendant was convicted upon a charge of stealing a horse from one Buchanan in Marshall county, and sentenced to imprisonment in the penitentiary for two years. He appeals.J. H. Bradley, for appellant.

Smith McPherson, Atty. Gen., for the State.

ADAMS, J.

1. The state relied principally upon evidence tending to show that the defendant was seen in the possession of the stolen horse the next morning after he was stolen. To rebut the evidence of the state, the defendant introduced evidence tending to show that on the night of the theft he was several miles distant from the place of the theft, and also that at that time his personal appearance in respect to having a mustache, etc., differed from that of the person seen in possession of the stolen horse. As touching the evidence of non-identity and alibi, the court gave an instruction in these words: “While it is necessary for the state to prove the material allegations of fact of the indictment beyond a reasonable doubt, yet, in the establishment of affirmative facts on the part of the defendant, such as facts pertaining to the personal appearance or identity of defendant, or whether he was or could have been at the time when and place where the offense was committed, if it was committed, it is sufficient if such facts are shown by a preponderance of the evidence, which is deemed by the jury reliable and credible, and of any weight; and so considering such fact, with all the other facts and circumstances in the case, if there is reasonable doubt of the defendant's guilt he should be acquitted.” The giving of this instruction is assigned as error.

We are not certain that we have a correct understanding of this instruction. But we think that we may say that the court regarded the non-identity of the defendant with the real thief, or with the person seen in possession of the stolen property, under such circumstances as to be presumptively the thief, to be a fact available to the defendant to some extent, if shown by a preponderance of evidence, and otherwise not; and that, if thus shown, it might be considered in connection with other facts and circumstances, and if sufficient, when thus considered, to raise a reasonable doubt of guilt, the defendant should be acquitted. But in our opinion evidence of non-identity should be treated like any other evidence offered by the defendant for the purpose of showing that he did not steal the horse. It was merely evidence in rebuttal. It might have the effect to raise a reasonable doubt of guilt, though not preponderating over that offered by the state. We may say also that, though preponderating, it might not have the effect to raise a reasonable doubt of guilt, if offered simply upon the question as to the identity of the defendant and the person seen in possession of the horse. The jury might believe that the defendant was not the person seen in possession, and still convict, if other evidence in the case warranted a conviction. It appears to us, therefore, that, so far as the question of identity was concerned, the instruction in...