State v. Wagner

• Decision Date: 14 December 1928
• Docket Number: 39262
• Citation: 222 N.W. 407,207 Iowa 224
• Parties: STATE OF IOWA, Appellee, v. JOHN WAGNER, Appellant
• Court: Iowa Supreme Court

222 N.W. 407

207 Iowa 224

STATE OF IOWA, Appellee, v. JOHN WAGNER, Appellant

No. 39262

Supreme Court of Iowa, Des Moines

December 14, 1928

Appeal from Keokuk District Court.--CHARLES A. DEWEY, Judge.

Defendant appeals from judgment of conviction of stealing eight chickens from the premises of Frank Day and wife, June 23 1927.

Reversed.

T. L Brookhart and George B. Baker, for appellant.

John Fletcher, Attorney-general, and Neill Garrett, Assistant Attorney-general, for appellee.

MORLING J. STEVENS, C. J., and EVANS, FAVILLE, DE GRAFF, and ALBERT JJ., concur.

OPINION

MORLING, J.

I. The defendant contends that there is no proof of the corpus delicti, and that the evidence is insufficient to sustain conviction. The State's evidence tends to show that the prosecuting witnesses, Frank Day and wife, kept on their home premises a large number of high-grade Plymouth Rock chickens, having peculiar markings. On June 23, 1927, prosecuting witnesses retired about 9 o'clock. The chicken house had been closed. About that time, their dogs made a disturbance, and were called by them to the porch. The next morning, prosecuting witnesses discovered that the doors of the chicken house were open, and the chickens that were left were out in the lot. A number were missing. How many, witnesses did not know. On the morning of the 25th, they found eight of them at Eck's store in Woolson. These eight chickens had been brought to Eck's store by the defendant about 10 o'clock P. M., June 23d, when Eck bought them of defendant. Defendant lived in Rubio, a considerable distance northeast of Woolson and Richland. The sheriff and assistant interviewed defendant, and examined his premises. Defendant gave untrue and different explanations of where he got the chickens. His woodshed, in which he claimed to have kept them for some time, showed no signs of the keeping of chickens there. The sheriff asked defendant "why he didn't sell the chickens in Rubio, in place of going clear down to Woolson with them, and he said he didn't like those fellows there very well. He could have got the same price for them, but didn't like those fellows very well." Eck had seen defendant only once before he bought the chickens. In addition, there is the evidence in behalf of the defendant, to which reference will be made later. We do not set out defendant's explanation. It is not our province to weigh the evidence. There was sufficient evidence of the corpus delicti and of defendant's guilt to go to the jury.

II. Defendant further contends that the court erred in receiving testimony to the effect that the chickens found by the prosecuting witnesses at Eck's, and taken back by them to their premises, appeared to be familiar with the chicken house and surroundings, and with the method of feeding and watering there, and with the roosting place; that they did not, when placed with the other chickens, stand apart and act strange, but mingled with the rest. We need not set out the particular facts disclosed in evidence from which these deductions are drawn. Defendant's contention is that the court was in error in admitting "testimony in relation to the action and conduct" of the fowls.--relying on State v. Grba, 196 Iowa 241, 194 N.W. 250, where it is held that evidence of the trailing and identification of defendant by bloodhounds was not admissible. The basis of the holding is summed up as follows:

"The evidence is in the nature of expert testimony, with no opportunity whatever to cross-examine the expert or to find out from any source any reason for the conduct of the dogs, or why they should choose one direction, or one trial, rather than another, as was done in the instant case."

It is also said:

"* * * the bloodhound may be right in what he does, and he may be wholly wrong. How is it possible to know in any particular case whether he is right or wrong?"

That case does not support appellant's contention here.

While, in the case now before us, there is no evidence as to the habits and instincts of chickens, such evidence is not necessary; for their habits and instincts in the respects under consideration here are so well known and matter of such common observation that the court will take judicial notice of them. 23 Corpus Juris 154 et seq. See Parsons v. Manser, 119 Iowa 88, 93 N.W. 86. In the light of such general knowledge, the testimony to the actions and conduct of the chickens, tending to show familiarity with their surroundings and with the practice in places and methods of feeding and watering in use there, and the absence of signs of strangeness, was admissible, as tending to identify the chickens found in defendant's possession that night with the chickens which had been taken from the prosecuting witnesses' premises. State v. Ward, 61 Vt. 153 (17 A. 483, 487); 22 Corpus Juris 750; Folsom v. Concord & M. Railroad, 68 N.H. 454 (38 A. 209).

III. The court charged the jury that reasonable doubt "does not mean a captious, strained, or unnatural doubt, nor one raised by some forced or unnatural meaning given to the evidence, or one which is manufactured from sympathy for a defendant, or to excuse the guilt of one of whose guilt there is no reasonable doubt. But it means a doubt which, without being sought after," etc. Defendant argues that the instruction is misleading; that the expressions "manufactured from sympathy for a defendant" and "it does not mean a captious, strained, or unnatural doubt, nor one raised by some forced or unnatural meaning," would easily lead the jury to believe that they must manufacture a doubt from sympathy for the defendant, and could not have any reasonable doubt unless they did so. We are of the opinion that defendant's objection to the instruction is untenable. An instruction containing the same language here objected to--though this precise point was not made--was approved in State v. Krampe, 161 Iowa 48, 55, 140 N.W. 898, followed in State v. Berry, 192 Iowa 191, 195, 182 N.W. 781. See, also, State v. Lindsay, 161 Iowa 39, 44, 140 N.W. 903.

IV. The court gave an instruction on the defense of alibi, saying, among other things, as is commonly done in such instructions, that the defense is recognized as one easily manufactured, and that the evidence on it should be examined with care. Defendant contends that the defense of alibi was not raised, and we think in this his position is correct. We think the evidence introduced by him, showing his whereabouts on the evening in question, was incidental to his denial that he was the perpetrator of the offense, and was not offered for the purpose of showing, and did not show, that, by reason of his being elsewhere, it was impossible for him to have taken the chickens at the time and place charged. The evidence is not clear as to the location of Rubio, Richland, and Woolson, but the court takes judicial knowledge of their geographical locations. Wertheimer & Degen v. Shultice, 202 Iowa 1140, 211 N.W. 568; 23 Corpus Juris 84 et seq. To some extent, judicial knowledge may be taken of general distances between such locations. Helena Adjustment Co. v. Claflin, 75 Mont. 317 (243 P. 1063).

Defendant lives in Rubio, in Washington County. Richland is in Keokuk County, a number of miles southwest of Rubio. Woolson is some distance south of Richland. The prosecutors' premises are about two and one-half miles northwest of Woolson, and about two and one-half miles southwest of Richland. How far from the road leading from Richland to Woolson is not shown. The State's evidence as to the time of the offense is that it was about 9 o'clock, or soon after. Defendant was in possession of the chickens at about 10 o'clock, when he sold them at Woolson to Eck. Defendant's claim is that the chickens that he sold to Eck had been in his possession in Rubio for ten days or two weeks. Defendant's wife testifies that, at about 8 o'clock in the evening of June 23d, she and defendant put the chickens in their car at Rubio, and went together to her sister's, about three quarters of a mile south of Rubio; that she then got out of the car; that defendant stayed there just a few minutes, and then defendant and her sister's husband, Hubbs, "started to Woolson. They returned about 10 o'clock, I think." Hubbs says that defendant, with his wife and children, came to his place in their car about 8 o'clock; that the wife and children stopped there, and he (Hubbs) "went to Richland with Mr. Wagner. It was somewhere in the neighborhood of 8:30 when we started to Richland. I would judge it was somewhere around 9:00 when we got to Richland. * * * I heard some chickens in Mr. Wagner's car * * * When we got to Richland, I stopped there. * * * Mr. Wagner went on. He went south. He returned for me somewheres around an hour later. Somewheres about 10 o'clock. I got in the car, and went back home with Wagner. Mr. Wagner and his family left our home in the neighborhood of 11 o'clock. * * *"

Defendant testifies merely that he was not on the prosecuting witnesses' place on the night of June 23d, and never stole any of their chickens.

The defendant might have left Rubio, arrived at Richland, and left there, at the times stated. In going from Richland to Woolson, he was in an automobile, and within a short distance of Day's place at the time when the chickens were, according to the State's evidence probably stolen. If the testimony of defendant's witnesses as to his whereabouts should be accepted as true, it might, nevertheless, be found that he could very readily have been at the Days' place at the time the chickens were stolen. The defense of alibi, in substance, is that, at the time of the commission of the offense, defendant was at another place. We have not seen a satisfactory rationale of the law of alibi, and...