State v. Waterman

• Decision Date: 24 January 1893
• Citation: 87 Iowa 255,54 N.W. 359
• Parties: STATE v. WATERMAN.
• Court: Iowa Supreme Court

87 Iowa 255

54 N.W. 359

STATE

v.WATERMAN.

Supreme Court of Iowa.

Jan. 24, 1893.

Appeal from district court, Clayton county; L. O. Hatch, Judge.

Defendant was charged with the crime of nuisance, in obstructing a public highway. He pleaded a former trial and acquittal of the same offense. Jury trial. Verdict for defendant. The state appeals.D. D. Murphy, Co. Atty., J. Y. Stone, Atty. Gen., and J. Larkin, for the State.

J. O. Crosby, for appellee.

KINNE, J.

1. April 11, 1890, defendant was indicted for the crime of nuisance committed by obstructing a highway on or about April 28, 1888. Defendant pleaded a former acquittal of the offense charged, by the judgment of the same court, rendered May 2, 1888. To support this plea defendant introduced in evidence the indictment in the former case, and also in the case at bar; the testimony on which each indictment was found; the notice as to additional witnesses in the present case; the instructions given to the jury on the former trial; also the testimony of the judge who tried the former case. From the evidence it appears that defendant was tried and acquitted May 2, 1888, on an indictment found on September 7, 1887, which charged him with a nuisance committed by obstructing this same highway, committed on or about September 7, 1887. The indictment in the case at bar charges the defendant with obstructing the same highway on or about April 28, 1888. The evidence shows that the obstruction originally placed in the highway in 1887, or prior thereto, had remained ever since, and constituted the obstruction on which the present as well as the former indictment was based.

2. On the last trial, Judge Hatch, who presided at both trials, was called as a witness on behalf of the defendant, and, against the objection of the state, testified, in substance, that the first trial was had on the merits; that the main question contested was whether or not a certain track across defendant's land, which it was claimed he had fenced up, was a highway; that the claim of a highway made in that case was in Volga township, across defendant's land, and substantially upon a line surveyed by one Zearly; that there was no contention over any other question. It is claimed it was error to permit the introduction of this testimony; that the judge could not contradict the record. It is proper to say that Judge Hatch was permitted, without objection, to state that on the former trial the building of the fence across the track referred to was virtually admittted, so as not to be a subject of controversy. Hence the admission of the prior testimony touching that matter, even if error,was not prejudicial. The other facts testified to by him were that the trial was had on the merits, and identifying the location of the highway which in the first trial was claimed to have been obstructed. These were material facts, which it was incumbent on the defense to establish. If the acquittal was had on a hearing wherein the merits of the charge were not investigated, it could not be successfully urged in bar of the charge in the second indictment, and the same result would follow if the offenses charged were not shown to be the same in both cases. If, as we think, the record evidence did fully show that the former hearing was held on the merits, then the fact that the witness also testified that such was the case would not be such error as that the state would be prejudiced thereby. The record in the former trial, viz. the indictment, plea, instructions, and finding of the jury, would not identify the highway in both cases as being the same. So far as this record discloses, neither indictment so definitely located or described the highway that from them it could be determined that they were identical. It is rarely the case that the identity of the crime charged in two different cases is fully established from the record alone. In such cases parol evidence is always admitted to aid in identification, so long as the record is not contradicted thereby. Emerson v. State, 43 Ark. 372; Swalley v. People, 116 Ill. 247, 4 N. E. Rep. 379; Walter v. State, 105 Ind. 589, 5 N. E. Rep. 735; Dunn v. State, 70 Ind. 47;Com. v. Dillane, 11 Gray, 67;State v. Maxwell, 51 Iowa, 314, 1 N. W. Rep. 666; 1 Bish. Crim. Law, § 1050; Jenkins v. State, 78 Ind. 133;Rocco v. State, 37 Miss. 357;Packet Co. v. Sickles, 5 Wall. 580;People v. McGowan, 17 Wend. 386;Stapleton v. King, 40 Iowa, 278. In State v. Maxwell, supra, this court held that a justice of the peace before whom the defendant had been convicted of a former offense might properly testify that the offense charged in the information laid before him was in fact the same as that testified to by the witness in the second case, and that he might identify the evidence as being the same. Surely no one was better qualified to speak touching the identity of the charge than the judge who presided at the former trial.

3. In the case at bar the court instructed the jury thus: “If you find from the evidence that in the trial of the former case the main defense was that the road obstructed by the defendant was not a public highway, then you will find that the judgment of acquittal in the former case was a final judicial decision in defendant's favor on this question; and if you further find that the roads mentioned in the two indictments, and the obstructions complained of, are the same, and that in this present case the same question as to the existence of a public highway is involved, and that in order to convict in this case the same question will have to be retried and decided the other way, you will find that the offenses in the two cases are substantially...