State v. Red

• Decision Date: 16 March 1880
• Parties: THE STATE OF IOWA v. RED.
• Court: Iowa Supreme Court

53 Iowa 69

4 N.W. 831

THE STATE OF IOWA

v.RED.

Supreme Court of Iowa.

Filed March 16, 1880.

Appeal from Jasper district court.

The defendant, with Robert Graves, Andrew Smith and Archie Brown, was indicted by the grand jury of Polk county for the murder of Ella Barrett on the twenty–eighth day of August, 1874. Upon petition of defendant the venue of the cause, as to himself, was changed to Jasper county. Upon a trial in that county he was convicted of murder in the second degree and sentenced to imprisonment in the penitentiary for 12 years, and now prosecutes his appeal to this court.Bowen & Leavens, for appellant.

J. F. McJunkin, Attorney General, for the state.

BECK, J.

1. At the trial before the district court the prisoner was a witness in his own behalf. The court held that the rules governing the cross–examination of other witnesses applied to the cross–examination of the prisoner, when testifying in his own behalf, and permitted questions to be asked him intended to lay the foundation for impeachment by contradicting the statements he made in answer thereto. The defendant insists that in this ruling the court below erred. Our statute provides that “defendants in all criminal proceedings shall be competent witnesses in their own behalf, but cannot be called as witnesses by the state.” Acts Seventeenth General Assembly 168, § 1. The same statute, section 2, provides that the rules of evidence prevailing in civil actions, as prescribed by the Code, are applicable to criminal proceedings, so far as they are not inconsistent with other express provisions upon the subject.

There is nothing in the Code or subsequent legislation limiting or changing the rules of evidence pertaining to the cross–examination of witnesses. We know of no reason why a defendant, who is a witness in his own behalf, should not be subjected to the tests of credibility, of memory, and of intelligence, which the law has wisely provided, by means of cross–examination. Surely the legislature could not have intended that one on trial for a felony is entitled to more credit than another witness, by providing that his testimony shall not be subjected to the ordeal of the cross–examination. The explicit provision of the statute upon this subject renders further discussion of the question unnecessary. Counsel for defendant relies upon Code, § 4238. It is applicable alone to preliminary examinations of persons charged with crimes, and therefore is not to be considered in this case.

2. The defendant sought to establish an alibi. The court instructed the jury that “upon this question the burden of proof is upon the defendant, and before he can on this ground alone demand an acquittal, he must show where he was, and that he could not, therefore, have been present at the commission of the offence.” Surely an alibi will not be presumed; it must be proved. The burden of proof must rest upon the defendant, who seeks to establish it, just as the burden of proving defendant's presence at the place of the crime rests upon the state. Of course an alibi cannot be established except by a preponderance of evidence. No fact can be established by any less evidence. State v. Northup, 48 Iowa, 587;State v. Harden et al. 46 Iowa, 623;State v. Vincent, 24 Iowa, 571.

This rule does not abrogate the doctrine of reasonable doubt. A prisoner cannot be convicted upon a preponderance of evidence. There must exist no reasonable doubt of his guilt, based upon the evidence. But there may be a preponderance of evidence against him and yet a reasonable doubt of his guilt. In such case the jury may acquit. This reasonable doubt may be based upon the whole evidence or upon the evidence establishing certain essential facts necessary to be established, or upon evidence of facts inconsistent with the prisoner's guilt. The doctrine extends to all the evidence, and to each part tending to establish independent facts. If, upon consideration of the whole evidence or of any part of it, the reasonable doubt arises as to any essential facts, the jury must acquit.

3. A witness, S. B. Smith, sometimes designated in the record by the name 'Squire Smith, gave the following testimony:

“I had a conversation with Graves, in the presence of Red, in Des Moines, in the rear of an old building on Second street, that used to be Pat. Kavanagh's saloon, on an alley. There was a saloon in the front room. We went into the room from a door on the alley. Graves requested me to go in. We went into that room twice. Red was not present the first time. The next time we went in Red was there. All that was said Graves said: ‘Here is the things we want you to take away for us.’ He said, ‘The coroner's jury is in session, and it is causing a great deal of excitement, and we want you to take these things away where they will be secure and safely kept, because I am coming for them to–morrow, and want to entrust them to you.’ And I told him I would do it.

He said they were some of the things that belonged to the murdered woman. I asked him what murdered woman, and he said Mrs. Barrett. I can't be positive whether there was anything said as to who killed her. Graves was doing the talking. He said he was subpœnaed before the coronor's jury, and wanted these things away, because there was such an excitement. The things were jewelry, [[[witness shown bracelet.] I don't say this is it, but I saw one just like it, [[[and the same answer as to the breastpin, eardrops and knife.] First saw them in Grand Junction. They were there in my possession. I got them from Graves and Red in that room. They were packed in a paper. I also received a watch. I guess it was a gold watch. Am not acquainted with watches. I never carried a watch five minutes of my life. There was a chain attached to the watch; looked like gold. It was a long chain, that went around the neck with a slide, and had a little gold Bible and that knife. Red took these things out of his pocket. He gave them to Graves, and Graves chucked them into my grip satchel. I took them to Grand Junction.

The next day Andy Smith came up to Grand Junction, and Graves and Red sent me a telegram. I answered the telegram in person, with the things in Boone, with the request of Andy Smith. I got the telegram about 11 o'clock, before Smith came, and started for Boone about 12:40; got to Boone about 2 o'clock; met Henry Red and Graves there. There was nothing said more than they wanted the things and had sent for me. They were glad I had answered and done as I agreed to. I had the jewelry in my grip satchel. The first thing we did at Boone was to go into a saloon and get a drink. Then we went back into an alley and I delivered the things to them, all but the watch. I left the watch in Grand Junction. They put the things in Red's pocket. They wanted the watch, and I told them they wouldn't get it. I told them if there was any money to be made out of the watch I wanted to make it myself. I got kind of mad. I wanted to make some money as well as they did. We took another drink. They did not like it about the watch and went off grumbling.

I can't recollect that there was anything said about Ella Barrett there. Red and Graves went away on the train that I came in on. The train stopped there 20 minutes for...