State v. Minor

• Citation: 77 N.W. 330,106 Iowa 642
• Parties: STATE v. MINOR ET AL.
• Decision Date: 14 December 1898
• Court: United States State Supreme Court of Iowa

106 Iowa 642

77 N.W. 330

STATE

v.MINOR ET AL.

Supreme Court of Iowa.

Dec. 14, 1898.

Appeal from district court, Harrison county; George W. Wakefield, Judge.

The defendants were indicted and convicted for stealing a steer, and appeal. Affirmed.S. H. Cochran, for appellants.

Milton Remley, Atty. Gen., and W. H. Redman, for the State.

LADD, J.

Falk purchased 46 steers at Nickerson, Neb., and brought them past the Dray pasture to his farm, in Harrison county, in April, 1896. One of these (a whitefaced, red, two year old steer, with right horn lopping to the right eye, and brands not especially noticed at the time) disappeared about June 15th of the same year. At about the same time a stray steer, of like description, with brands identified as a “pick” and a “U,” appeared in the Dray pasture, and continued there till Sunday, October 4th. It was last seen between 4 and 5 o'clock p. m. of that day, within 300 feet of where the entrails of a steer were discovered the next day. One Granger was through the pasture near this locality earlier Sunday afternoon, and did not notice entrails at that time. A gunshot was heard by King from that direction at about 5 o'clock. The tracks of a wagon and team of mules standing were observed near by. These indicated that a piece of the right forefoot of the near mule, about 1 1/2 inches long, was broken from the outside and front quarter. The tracks of this team and wagon were traced 1 1/2 miles to the gate of the pasture at the Blair bridge, and from there more than that distance past the house of Jeff Minor, to and from the locality of the entrails. Rain fell shortly after 5 o'clock Sunday, and the difference in these tracks indicated that those leading to the entrails were made before the rain, and those therefrom afterwards. Other mule teams had been in the pasture that day,--one with a defective foot,--but had left through the east gate, near Dray's house. Several witnesses testify to the tracks; and whether, owing to the character of the soil, they could be observed, was a question for the jury. The defendant James Minor had three colts and a mule in this pasture, and had been there to see them on each of the previous Sundays. He and the other defendants started there, by way of the house of Jeff Minor, on the 4th of October, and left the latter's place, in the direction of the Blair bridge, for that purpose, about 4 o'clock in the afternoon. They testify that, owing to the appearance of a dark cloud in the west, they were apprehensive of a storm, and drove on without entering the pasture. The evidence tends to show that on Tuesday the feet of the mules then driven by Minor were measured, that a piece was gone from the right forefoot of the near mule, and that these corresponded with the tracks. At the same time 132 pounds of fresh meat were found in his smokehouse, 175 pounds in a tub in the second story of Frank Farlow's house, and 8 or 10 pounds at Chance Farlow's home. All this meat had been recently salted down, and was shown by a butcher to be from a steer. On the part of the defense it was claimed: That James Minor killed a two year old crippled steer, belonging to himself and mother, October 2d, and sold the 175 pounds of meat to Frank Farlow in payment of a debt, and that at the home of Chance was purchased by his brother. That delivered to Frank was not weighed, nor was the price agreed. Dogs had carried away the head and hoofs of the steer, and a Jew peddler received its hide in payment for trousers. Whether the mother and James had such a steer in 1896 is put in issue by the evidence. One witness testified that she saw defendants near home between 5 and 6 o'clock p. m. Sunday, but the impeaching evidence was such that the jury might have rejected her story. It might also be added that the traditional tall man and short man were seen along the river in this pasture, with a Winchester rifle, and a dead red steer on the sand bar. We have found it necessary to set out the evidence somewhat in detail, in order to pass upon the points raised by the appellants.

1. The circumstances all point to the killing of the stray steer October 4, 1896, at about 5 o'clock in the afternoon. It was last seen after 4 o'clock, near where the entrails of a steer were found the next day. The sound of a gunshot was heard from there within an hour. The team and wagon were there at about that time. The mark of the broken hoof of the mule, similar to that of Minor's, going before the rain, and returning afterwards; the fall of the rain shortly after 5 o'clock; the defendants' purpose of going to the pasture at that time; and all confirmed by their possession of the meat of a steer,--warranted the jury, if believed, not only in finding the particular steer was killed, but that these defendants did the killing, and appropriated the meat to their own use.

2. The steer was peculiarly marked by the drooping horn and the white face. Falk and his employés noticed brands, but not their character, while Dray observed that of a “pick,” and also “U.” It disappeared from Falk's farm at about the time it appeared in Dray's pasture, which was near the road it had been driven when brought from Nebraska. The positive identification of animals is always a matter of some difficulty, but we are of the opinion that the similarity in the description and size, when considered in connection with the other circumstances, was such that the identity of the steer killed as that of Falk might well...