State v. McCumber
| Decision Date | 08 February 1927 |
| Docket Number | 37370 |
| Citation | 212 N.W. 137,202 Iowa 1382 |
| Parties | STATE OF IOWA, Appellee, v. JAMES MCCUMBER, Appellant |
| Court | Iowa Supreme Court |
Appeal from Lee District Court.--JOHN E. CRAIG, Judge.
The defendant was convicted of the crime of breaking and entering, and appeals.--Reversed and remanded.
Reversed and remanded.
Hollingsworth & Hollingsworth, for appellant.
John Fletcher, Attorney-general, Herbert A. Huff, Assistant Attorney-general, and G. L. Norman, County Attorney, for appellee.
The appellant was accused of breaking and entering a warehouse with intent to commit larceny. The warehouse in question was located on an alley, and behind a store with an intervening yard. The appellant lived across the alley from the warehouse.
I. The evidence in chief on behalf of the State was to the effect that, about two and a half hours before sunrise, on the morning in question, a man was seen coming out of the warehouse with a sack of feed or bran on his shoulder; that the door of the warehouse had previously been shut; that one of the witnesses, who had been watching from the store building, called to the man and fired a gun; that the man dropped the sack and ran. Two witnesses who were watching testified that the man with the sack was the appellant; that they had known him for six months.
The appellant and his wife testified that the appellant was in his own home; that he got up and came downstairs just in front of his wife, and was in the kitchen, building a fire when they heard a shot and a man running. The appellant testified that he went out to the gate, and could see no one but heard an automobile running. The appellant denied that he was at or in the warehouse that morning.
In rebuttal, the State was permitted to introduce the testimony of a witness who said that he was standing in an alley across the street from the warehouse; that he heard the shot and saw the flash, and saw the appellant run out of the yard between the corner of the warehouse and a billboard, and run to his own house and go in. It is urged that this testimony was not proper in rebuttal, and that the name of the witness was not indorsed on the indictment.
The testimony of appellant and his wife tended to establish an alibi. This was an affirmative defense, as to which the burden was on appellant. The State had a right, in rebuttal, to introduce testimony tending to contradict the testimony by which the defense was sought to be established, and this is true although such testimony might have been admissible in chief, as tending to connect the defendant with the commission of the crime, and although the name of the witness was not indorsed on the indictment. State v. McClintic, 73 Iowa 663, 35 N.W. 696; State v. Watson, 102 Iowa 651, 72 N.W. 283; State v. Johnson, 72 Iowa 393, 34 N.W. 177; State v. Olson, 200 Iowa 660, 204 N.W. 278. See, also, Mills v. State, 104 Ohio St. 202 (135 N.E. 527); State ex rel. Botts v. Stout, 101 Kan. 600 (168 P. 853).
II. The appellant, as a witness in his own behalf, was asked, on cross-examination, how long he had been going by the name of McCumber; if at one time he had not gone by the name of Jameson; and if, on one occasion, he had not been introduced to one Vaughan by the name of Jameson. He answered that he had always gone by the name of McCumber; that it was his name; that he never at any time had gone by the name of Jameson, or been so introduced.
The State was permitted, over objections, in rebuttal, to show by one witness that the appellant had gone by the name of Jameson, and to show by Vaughan that, some ten or twelve years before, appellant had been introduced to him by that name. Motions to strike the answers were overruled.
With respect to his memory, history, motives, or matters affecting credibility, a defendant charged with a crime, when a witness, stands on the same footing as any other witness. State v. Kuhn, 117 Iowa 216, 90 N.W. 733. In State v. Watson, supra, where the county attorney was permitted to cross-examine the defendant who was a witness in his own behalf, with reference to his various places of residence, his going under assumed names, and his whereabouts at particular times, at considerable length, we said that the examination was perfectly proper, and that the court...
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