State v. Neimeyer

• Decision Date: 22 July 1885
• Citation: 24 N.W. 247,66 Iowa 634
• Parties: STATE v. NEIMEYER.
• Court: Iowa Supreme Court

66 Iowa 634

24 N.W. 247

STATE

v.NEIMEYER.

Supreme Court of Iowa.

Filed July 22, 1885.

Appeal from Cass district court.

The defendant was convicted of the crime of obtaining property under false pretenses. Judgment was rendered upon the verdict, and he appeals.

REED, J., dissenting.

L. L. Delano, for appellant, Henry Neimeyer.

A. J. Baker, Att'y Gen., for the State.

ADAMS, J.

1. The evidence shows that in July, 1882, the defendant purchased of one Briggs and one Ish certain cattle, and agreed to pay therefor $250. The defendant resided at Atlantic, in Cass county. The cattle were purchased at Anita, several miles distance from Atlantic, but in the same county. They were driven to Atlantic the same day, and arrived there late in the afternoon, and were sold by the defendant that evening. He failed to pay for the cattle, and it is claimed by the state that he induced Briggs and Ish to part with them by reason of false representation. There was evidence tending to show that the defendant stated that he must have cattle to butcher that night; that he had money in bank, but would not be able to pay Briggs and Ish that night because the bank would be closed before they would be able to reach Atlantic; that he would, however, go to Anita the next Monday, and pay for the cattle there.

For the purpose of rebutting this evidence the defendant introduced himself as a witness, and testified that he did not say that he had money in bank; and, for the purpose of showing further that it was not understood that he was then in a condition to pay for the cattle, he testified that he told Briggs that there was only one way in which he could buy the cattle; that he should have to have three or four days in which to turn himself; that he did not have the money. The attorney for the state then asked him if he did not sell the cattle that night. The question was objected to as not in cross-examination. The court overruled the objection, and the defendant answered that he did. The allowance of the question is assigned as error.

The defendant contends that the fact elicited upon the cross-examination had no tendency to rebut, modify, or discredit any statement made by him in his examination in chief. The statement which the defendant had made was that he told Briggs that he should have to have three or four days in which to turn himself. We do not think that the fact that he sold the cattle that night tended to show directly that he did not make such statement. We must say, too, that we think that any inference that could be drawn from the fact is a very slight one. If the opportunity to sell was an unexpected one, no inference at all could be drawn that the defendant did not tell Briggs what he testified he did. But the witness did not say that the opportunity to sell was an unexpected one, nor make any explanation whatever. There was, then, we think, some slight ground for inference on the part of the jury that the defendant expected to sell that night, and did not honestly believe that he needed three or four days in which to turn himself, and did not therefore tell Briggs that he did. Where a cross-examination is not entirely foreign to the testimony given in chief, and has any tendency whatever to impair its credibility, we cannot reverse on account of it.

2. The defendant contends that the court erred in not instructing the jury that it was incumbent upon the state to prove a fraudulent intent. The instruction which the court gave upon this point, and which the defendant contends is insufficient, is in these words: “In order to make out the crime here charged the state must prove the following matters, to-wit: (1) That the defendant made to said Briggs and Ish the representations or pretenses substantially as charged in the indictment, or some of them; (2) that such representations or pretenses were false, and known by the defendant to be false when he made them; (3) that defendant made such representations with intent by means thereof to induce Briggs and Ish to sell and deliver to him the...