State v. McIntosh

• Decision Date: 10 October 1899
• Citation: 80 N.W. 349,109 Iowa 209
• Parties: STATE OF IOWA v. J. T. MCINTOSH, ARTHUR R. GROSVENOR, CHRISTINA GROSVENOR, and THOMAS JEFFERSON, Defendants, THOMAS JEFFERSON, Appellant
• Court: Iowa Supreme Court

80 N.W. 349

109 Iowa 209

STATE OF IOWA v. J. T. MCINTOSH, ARTHUR R. GROSVENOR, CHRISTINA GROSVENOR, and THOMAS JEFFERSON, Defendants, THOMAS JEFFERSON, Appellant

Supreme Court of Iowa, Des Moines

October 10, 1899

Appeal from Madison District Court.--HON. JAMES D. GAMBLE, Judge.

THE defendants were jointly charged by indictment with the crime of conspiring and confederating together to defraud and cheat, by false pretenses and representations, the counties of Madison, Dallas, Guthrie, Polk, Marion, Page, Mills Ringgold, and other counties in the state of Iowa. The appellant, Thomas Jefferson, was separately tried, and a verdict of guilty returned against him, upon which the court rendered judgment of imprisonment in the penitentiary for a period of two years and six months, from which judgment the defendant Thomas Jefferson appeals.

Affirmed.

Argo & Middlekauff for appellant.

Milton Remley, Attorney General, for the State.

OPINION

GIVEN, J.

I.

It appears that in impaneling the jury, after exhausting the regular panel, when the clerk was about to proceed to draw from the tales-box, the court directed as follows: "The Court: One of the jurors summoned as talesman in the last panel issued, appearing and offering sufficient excuse,--reason for excuse,--was by the court excused; and it appearing to the court that the other person named in the venire drawn to serve as a talesman is not in the city, but is in the country, and will not return until noon, the court on its own motion, directs the clerk to proceed and draw from the talesmen's box the names of two persons to serve as talesmen on the trial in this case, omitting the names of any that he knows to be exempt from jury service, or any that may be absent from the territory," --to which order and ruling the defendant at the time excepted. Appellant complains of this action of the court. Such action is fully authorized by section 349 of the Code, and that section was strictly pursued in this instance, except that the court directed the clerk to omit the names of any whom he knew to be exempt from jury service, while the language of the statute is that the court may direct the clerk to reject "those known to be unable to serve." It is true that a person exempt may be qualified and able to serve, but it does not appear in this case that any prejudice resulted to the defendant from the order of the court. So far as appears, he did not exhaust his challenges, and the jurors by whom he was tried were legally qualified in all respects to sit in the case. It does not appear that the defendant took exceptions to any member of the jury nor to the jury as a whole. An acceptance of the jury was a waiver of all exceptions thereto, unless it might be as to legal qualifications. State v. Groome, 10 Iowa 308; State v. Pickett, 103 Iowa 714, 73 N.W. 346.

II. Appellant presents several exceptions to rulings of the court in taking the evidence. To understand these, we will state briefly the theory of the prosecution, as indicated in the charge and in the evidence. It appears that, in the fall and early winter of 1897, these defendants were camped on one of the rivers of Warren county, some of them representing themselves to be engaged in the business of hunting and trapping wolves. The defendant and his wife, then passing by the name of Teller, were camped six or eight rods from the other defendants. About November 1st defendant McIntosh filed a claim with the auditor of Madison county for thirty dollars for six wolves killed in that county, the defendant Grosvenor and wife testifying thereto. On November 29th McIntosh made a further claim for twenty-five dollars on five wolves killed in Madison county. These claims were allowed and paid. At the time of their arrest a number of wolf hides, some with and some without the scalps, were found in the defendant's camp and in the camp of the other parties. There was evidence tending to show that many of these hides were from a species of wolf known as "coyotes," that are not found in Iowa, but are common in Nebraska and west of the Missouri river. There was also testimony tending to show that many of these hides had been taken from the animal a long time prior to the time of the search. There was also testimony showing that similar claims had been made on the counties of Guthrie, Polk, Ringgold, Dallas, and Mills by McIntosh, and tending to show that the appellant participated in the making of some of these claims.

C. C Stiles, auditor of Madison county, called by the state, having testified to the presentation of the claims against that county by McIntosh, that the hides had the appearance of old hides, and were not such as were ordinarily presented, but were smaller and darker in color, was asked on cross-examination as follows: "Had those wolves been killed in Madison-county?" to which he answered, "I don't know, but I don't think they was." He further answered that what he...