State v. Moran

• Decision Date: 17 October 1906
• Parties: STATE OF IOWA, Appellee, v. THOMAS MORAN, Appellant
• Court: Iowa Supreme Court

109 N.W. 187

131 Iowa 645

STATE OF IOWA, Appellee, v. THOMAS MORAN, Appellant

Supreme Court of Iowa, Des Moines

October 17, 1906

Appeal from Monona District Court.--HON. WM. HUTCHINSON, Judge.

THE defendant having been convicted of larceny, appeals.

Affirmed.

Prichard & Newby, for appellant.

C. W Mullan, Attorney General, and L. DeGraff, Assistant Attorney General, for the State.

OPINION

WEAVER, J.

Defendant was charged with the larceny of certain horses alleged to have been committed on May 16, 1901. As the indictment was not found within three years after the date named it became essential to the State's case to show that the operation of the statute of limitations had been suspended by the defendant's absence from the State during that period. To that end a witness was produced, who testified that he was and for some time had been, warden of the State penitentiary at Stillwater, Minn.; that he had known defendant since September 17, 1902, and had known him in Minnesota for "three years and six months less good time." It is claimed that the overruling of defendant's objection to this testimony was error because it had the tendency to show that he had been convicted of felony and the Code elsewhere provides that this fact shall only be shown by the record of the conviction, or by the testimony of the party himself as a witness. We do not think the statute referred to was intended to apply to an instance of the kind here in hand. It was the right of the State to prove the absence of the accused from the State and the only direct and effective manner of doing that is by the testimony of witnesses who have seen and known him in the foreign jurisdiction. If, in giving such testimony, it incidentally crops out, or facts are stated from which it may be inferred that the defendant has been in prison, we think it does not violate the statute in letter or in spirit.

One Morrison was also called as a witness for the State, and was permitted to testify that, as an agent or representative of the complaining witness, he visited defendant in the Stillwater prison, and obtained from him an admission of his guilt of the crime charged in this case, and learned from him where the stolen horses could be found. Later in the examination, the court, becoming satisfied that the alleged confession had been made under a promise of immunity sustained the objection thereto, and struck it from the record. It is now said that the later ruling could not have the effect to remove the prejudice caused by the improper admission of the testimony, and a new trial should be granted. With this we cannot agree. It is true that in some exceptional cases the effect of the admission of improper evidence is regarded as so clearly and seriously prejudicial that its subsequent withdrawal from the jury will not be regarded sufficient to cure the error; but the general rule is otherwise. It is not possible for even the most watchful and careful trial court to keep from the jury at all times all testimony of an immaterial or incompetent character, and if, upon attention being called thereto, such matter is stricken out, we must under all ordinary circumstances assume that the jury has done its duty, and given it no weight or influence in reaching the verdict. We can, of course, readily conceive a case where, without the alleged confession, the State's showing is so...