State v. Rosier

• Decision Date: 24 March 1881
• Citation: 8 N.W. 345,55 Iowa 517
• Parties: THE STATE v. ROSIER
• Court: Iowa Supreme Court

8 N.W. 345

55 Iowa 517

THE STATE v. ROSIER

Supreme Court of Iowa, Des Moines

March 24, 1881

Appeal from Fayette District Court.

THE defendant was charged with the crime of willfully and maliciously burning a certain barn in the night time. Upon a trial he was convicted and sentenced to imprisonment in the penitentiary for the period of ten years. Defendant appeals.

REVERSED.

Ainsworth & Hobson and Murdock & Larkin, for appellant.

J. F McJunkin, Attorney General, and Cyrus Wellington, District Attorney, for the State.

OPINION

ROTHROCK, J.

I.

The barn in question, which was a large and valuable one, was consumed by fire on the night of the 13th of March, 1879. The evidence against the defendant, aside from some alleged threats against the owner of the barn, and some admissions made after the barn was destroyed, consisted principally in the similarity of certain boot tracks with tracks made by those supposed to have been worn by the defendant, and which tracks were found leading towards the barn and away from it to the dwelling-house of one Rush, some three or four miles distant. There had been a fall of snow on the day before the fire, which it was claimed enabled the parties in search of evidence to trace the tracks to the house of Rush. After the fire a pair of rubber boots were found in Rush's house and which he or his wife delivered to one Farr, a witness, with the statement that the boots belonged to Rush. There was no evidence that the boots were the property of the defendant, and it does not appear that he made his home with Rush. There was evidence tending to show that the defendant was at the home of Rush on the evening before the fire, and that he was there the next morning, and witnesses testified that he afterward stated that he remained at the house of Rush during the night. Rush was not called as a witness by either party.

The court in the thirteenth paragraph of its charge instructed the jury as follows:

"XIII. If you find from the evidence that the defendant on the afternoon or evening previous to the fire was in the company and at the dwelling-house of Charles Rush, and in the morning after the fire was at the dwelling-house of Charles Rush, and in his company; or if you find that he stayed there a part of the night in company or to the knowledge of Charles Rush, then the fact that defendant does not produce Charles Rush here as a witness, nor show any reason why he is not so produced, is a circumstance that may be construed against the defendant as unfavorable to the presumption of innocence."

This instruction appears to us to be erroneous. It is undoubtedly correct that the suppression or destruction of evidence is a...