State v. Rivers

• Decision Date: 21 April 1886
• Citation: State v. Rivers, 68 Iowa 611, 27 N.W. 781 (Iowa 1886)
• Parties: STATE v. RIVERS AND ANOTHER.
• Court: Iowa Supreme Court

68 Iowa 611

27 N.W. 781

STATE

v.RIVERS AND ANOTHER.

Supreme Court of Iowa.

Filed April 21, 1886.

Appeal from Mahaska district court.

The defendants were convicted of the crime of breaking and entering a store building in the night-time with intent to commit a larceny, and they appeal from the judgment pronounced against them.Phillips & Greer, for defendants.

A. J. Baker, Atty. Gen., for the State.

REED, J.

The evidence given on the trial shows that the building described in the indictment was broken and entered by some person on the night of the fifteenth of September, 1884.It also tends to show that a portion of the goods kept in the building (which was occupied as a general store) was stolen at the same time.The business conducted in the building was carried on by a partnership consisting of three partners, but the real estate was owned by two of the partners.The evidence relied on by the state to connect the defendants with the crime is circumstantial.The offense was committed at Olivet, in Mahaska county.On the eighteenth of September the defendants were arrested at Mount Pleasant, in Henry county.When arrested, they had in their possession certain goods which the evidence tends to show were stolen from the store on the night of the burglary.There was evidence also which tends to show that, on the evening of the fifteenth of September, they were seen in the vicinity of Olivet, and that they were there in company with two other men.When they were arrested, a man named Gleason was in their company, and the evidence tends to show that he was one of the party of four who were seen in the vicinity of Olivet on the evening of the 15th.He was arrested and indicted jointly with the defendants, but was awarded a separate trial.The defendants introduced evidence which tended to prove that they and Gleason were in Fort Madison on the evening of the 15th, and that they went during that night to Mount Pleasant with a circus with which they were employed, and that they arrived at Mount Pleasant early on the morning of the 16th, and remained there during that day.They also testified that they purchased the goods found in their possession when arrested from a man whom they met at Fairfield on the 17th.

Counsel for defendants contend that the evidence does not satisfactorily establish either that the defendants were in the vicinity of Olivet on the evening of the 15th, or that the goods found in their possession were stolen from the building at the time of the burglary.They also contend that, upon the evidence given by the defendants which tended to prove an alibi, and that which tended to explain their possession of the property, they were entitled to an acquittal.But we cannot disturb the judgment on this ground.It is not practicable for us to set out the evidence on these questions, or comment at any length upon it.We deem it sufficient to say that there was evidence which strongly tended to establish the identity of the property found with defendants with that stolen from the building.Witnesses who saw the four men in the vicinity of Olivet on the evening of the 15th undertook to identify the defendants and Gleason as three of the men composing the party.If these witnesses were correct as to this, it follows necessarily that those who testified that they were in Fort Madison on that evening testified falsely.Which of the witnesses was entitled to credit was a question for the jury, and they were in a much better position to form a correct judgment on the question than we are.The testimony which tended to prove the purchase of the goods at Fairfield was given by the defendants and Gleason alone.They were not contradicted with reference to that transaction by any direct evidence.Their story, however, with reference to it was not so reasonable or probable as that we can say that the jury should have accepted it as the truth.Indeed, it has so many points of resemblance to the stories which the writer of this opinion, in his experience in the district court, has heard told by defendants in criminal cases when there was an apparent necessity for them to explain their possession of other people's property, as to lead him to doubt whether it is entirely original with these defendants.

2.Each of the defendants testified that he had never been in Olivet or in Mahaska county until he was brought there after his arrest on this charge.The state offered evidence in rebuttal, tending to prove that defendant Martin was in Olivet, and in the store which was burglarized, about a month or six weeks before the burglary; also that he was in Oskaloosa at about the same time.The witnesses by whom it was proposed to prove these facts were not examined before the grand jury that found the indictment, and the district attorney had not served the defendants with notice of his intention to examine them on the trial.Counsel for the defendants objected to the examination of the witnesses, on the ground that defendants had not been notified that they would be examined, as required by the statute; but the objection was overruled.If the defendants had contented themselves with a simple denial that they were at Olivet, or in that vicinity, on the evening of the fifteenth of September, the state would clearly not have been entitled to examine witnesses in rebuttal of their statement who had not been examined before the grand jury, or of whose introduction the notice prescribed by section 4421 of the Code had not been given, for the testimony of such witnesses would have tended to prove a fact which had a tendency to support the indictment.Defendants, however, made their denial much broader than this.It must be presumed, we think, that they regarded the fact that they had not been in the county at any time before the fifteenth of September as material to their defense, or they would not have attempted to prove it, although its materiality is not apparent to us.They did not make the objection that the evidence offered tended simply to contradict them on an immaterial matter, but their objection went solely to the competency of the witnesses.The evidence given by the witnesses was not introduced in support of the indictment, but to contradict the statement of the defendants, and was therefore admissible if the evidence it tended to rebut was material.The state, in rebuttal, is not limited to the witnesses who were examined before the grand jury, or of whose introduction the prescribed notice has been given....