State v. Roscum

• Decision Date: 30 January 1903
• Citation: 93 N.W. 295,119 Iowa 330
• Parties: STATE v. ROSCUM.
• Court: Iowa Supreme Court

119 Iowa 330

93 N.W. 295

STATE

v.ROSCUM.

Supreme Court of Iowa.

Jan. 30, 1903.

Appeal from district court, Des Moines county; James D. Smyth, Judge.

Indictment charges defendant with malicious mischief in pulling up and severing from the land of one Anderson 36 peach trees and 5 apple trees. There was a verdict of guilty, and judgment imposing fine and imprisonment, from which defendant appeals. Reversed.Dodge & Dodge, George S. Tracy, and C. L. Poor, for appellant.

Chas. W. Mullan, Atty. Gen., Seerley & Clark, and C. C. Clark, Co. Atty., for the State.

WEAVER, J.

1. Upon the trial the state placed one Leake upon the witness stand, and offered to prove by him that in the fall of the year 1900 he lost several geese, and afterward “saw geese exactly like them” on the farm of the defendant. This testimony being ruled out, the state further offered to prove by one Hunt other alleged facts of the same character. Objection to this offer being also sustained, a third witness––one Becker––was produced, by whom it was proposed to give evidence upon “a similar charge.” These repeated attempts to bring before the jury irrelevant and prejudicial matter is assigned by appellant as misconduct on part of the prosecuting attorney, having a distinct tendency to prevent a fair trial upon the particular charge made in the indictment; and we have to say we think the complaint is well founded. The appellant was upon trial for alleged malicious mischief or trespass in pulling up and removing certain fruit trees. The fact that certain persons might know or believe that on other occasions, and at other times and places, this man had been guilty of other and distinct offenses had no tendency whatever to prove his guilt of this particular trespass, and it is scarcely conceivable that it could have been offered by any lawyer in the belief that it was admissible. A somewhat similar question was considered by us in State v. Gadbois, 89 Iowa, 32, 56 N. W. 275, and, while condemning the practice, we declined to reverse upon that ground alone, saying: “Improper questions are sometimes asked in good faith, without any sinister motive; and, when objections to them are sustained, the fact that they were asked should not be deemed sufficient ground for a new trial, unless there is at least reasonable presumption that prejudice has resulted from them.” In that case the improper offer was not repeated by the prosecutor, and the presumption of good faith was held sufficient to prevent a reversal. In the present case, if the first offer could be excused as an act of good faith under a mistaken view of the legal rights of the state, no such charitable presumption can be invoked for the second and third attempts. Indeed, the purpose to get before the jury by indirection the fact that appellant was charged with other depredations, and thereby put him to a disadvantage in the pending trial, is too clear to admit of doubt. If convictions cannot be otherwise secured, it is far better to permit the guilty to go unpunished than to resort to expedients which are essentially unfair, and destructive of the settled rules of evidence. Commenting upon a like assignment of error in State v. Ean, 90 Iowa, 537, 58 N. W. 899, we had occasion to say: “If there were any reasonable doubts in our minds of the defendant's guilt, we should promptly reverse this case for these attempts to inject into the case matters which the county attorney must have known were improper.” The proof of guilt in the present instance is by no means so clear and indisputable as to convince us that appellant was not prejudiced by this conduct on part of the prosecutor. In support of this holding, see U. S. v. Cross, 19 D. C. 562;People v. Wells, 100 Cal. 459, 34 Pac. 1078;Randall v. State, 132 Ind. 539, 32 N. E. 305;People v. Cahoon, 88 Mich. 456, 50 N. W. 384;People v. Mullings, 83 Cal. 138, 23 Pac. 229, 17 Am. St. Rep. 223;Leahy v. State, 31 Neb. 566, 48 N. W. 390.

2. The appellant was a witness in his own behalf. On cross–examination by counsel for the state he was asked “if it was not true that a little over a year ago he went with his hired man around Anderson's into the plum patch, and have a sack full of plums,” etc. This was answered in the...