State v. Wehde, 43925.

• Citation: 283 N.W. 104,226 Iowa 47
• Decision Date: 30 December 1938
• Docket Number: No. 43925.,43925.
• Parties: STATE v. WEHDE.
• Court: United States State Supreme Court of Iowa

226 Iowa 47

283 N.W. 104

STATE

v.WEHDE.

No. 43925.

Supreme Court of Iowa.

Dec. 30, 1938.

Appeal from District Court, Cedar County; H. C. Ring, Judge.

Conviction of receiving stolen property. Defendant appealed.

Affirmed.

Superseding opinion in 277 N.W. 460.

SAGER, C.J., dissenting.Herbert Thompson, of Muscatine, and F. J. Casterline & Son, of Tipton, for appellant.

John H. Mitchell, Atty. Gen., and Ray Potter, Co. Atty., and J. C. France, both of Tipton, for the State.

STIGER, Justice.

This case is before us on a petition for rehearing, our original opinion appearing in 277 N.W. 460.

The state's main witness was Richard Van Dusen who had previously been convicted of a felony. Without the testimony of this witness the state's evidence was not sufficient to sustain a conviction. The testimony of Van Dusen was substantially as follows: In September, 1935, he and Alvis Cliff stole eleven head of Hampshire pigs from E. M. Crees, a neighbor of Cliff, about 8 o'clock at night and delivered them to defendant at his farm about 11 P. M. the same day. Cliff told defendant that he got the pigs close to his home and defendant replied that he should have gotten them farther away from home but it would be alright if Cliff got some more. Defendant gave the witness a drink of alcohol and $2 at the time of the delivery of the pigs. The witness later returned to the farm for more money and received the total sum of $11.

Defendant denied his guilt and offered evidence tending to establish his innocence including the testimony of several character witnesses.

Defendant claims the court erred in overruling his motion to direct a verdict of not guilty made at the close of the state's evidence. It is the contention of defendant that the testimony of Van Dusen had no probative value and was not entitled to consideration because he had been convicted of a felony. The following statement taken from appellant's argument reveals his position:

“We appreciate the rule that this court will not consider an objection that the defendant was not convicted on evidence establishing his guilt beyond a reasonable doubt; we realize that such question was for the jury, but we do insist that where there is no evidence in the record, absolutely none, excepting the testimony of an impeached convict, tending to establish the guilt of the defendant, that under such record, a conviction is worse than one obtained on a mere conjecture. The testimony of an impeached convict is not sufficient to raise even a suspicion of the truth. The naked word of an impeached convict is not sufficient to sustain the State's burden of proof.”

Code, Section 11254, reads: “11254. Witnesses-who competent. Every human being of sufficient capacity to understand the obligation of an oath is a competent witness in all cases, except as otherwise declared.”

Code, Section 11270, provides that a witness may be interrogated as to his previous conviction for a felony. This section does not make a person who has been convicted of a felony an incompetent witness but such fact is to be considered by the jury in determining his credibility and the weight it will give to his testimony.

[1] Proof that a witness has been convicted of a felony does not of itself impeach him, discredit his testimony or make him unworthy of belief. Appellant's contention is based on a misapprehension of the effect of impeaching evidence and is not supported by our statutes or our decisions. In the case of State v. Voelpel, 208 Iowa 1049, 226 N.W. 770, Mr. Justice Faville, speaking for the court, states [page 771]:

“It may be true that in ancient times and under the common law a witness who had been previously convicted of an ‘infamous crime’ was not permitted to testify at all. However, the law is now more logical and rational in this regard. An innocent person is not to be deprived of the evidence of a material witness who may testify in his behalf because of the fact that the witness has been previously convicted of crime. Evidence of previous conviction of a felony is admissible under the statute, as affecting the credibility of the witness. The law, however, does not raise the ‘presumption’ as a matter of law that a person who has previously been convicted of a felony is ‘less worthy of belief under oath than a citizen who is law-abiding.’ The jury should consider the evidence that the witness had been previously convicted of a felony in determining the credibility of the witness and the weight to be given his testimony. The jury should be instructed to this effect. See State v. Gilliland, 187 Iowa [794], 798, 799, 174 N.W. 496.

It is the well-established rule in this state that every witness is presumed in the outset to tell the truth. Walter v. C. D. & M. R. Co., 39 Iowa 33-38; State v. Ormiston, 66 Iowa 143-152, 23 N.W. 370;Windahl v. Hasselman, 198 Iowa 1001, 200 N.W. 583. When such a presumption is sought to be overcome by any of the recognized methods of impeachment, as, for example, by proving previous contradictory statements or acts, or a bad reputation for truth and veracity, or previous conviction of a felony, it is for the jury to determine, from all the facts and circumstances, the credibility that shall be given to the witness. But, so far as we have been able to ascertain, no court of last resort and no text-writer has ever declared that the law ‘presumes' that a person who has been convicted of a felony is impeached ipso facto. The fact of the previous conviction is a circumstance, like the fact of a bad reputation for truth and veracity, which may properly be considered by the jury in testing the credibility of a witness.” See State v. Lilteich, 195 Iowa 1353, 191 N.W. 76.

[2][3][4] This is not a case where the state's evidence was so lacking in probative force and the verdict so clearly against the weight of the evidence that the verdict can not be permitted to stand. One of the legal fundamentals is that if there is a conflict in the evidence the guilt or innocence of the defendant is for the determination of the jury. The jury had the opportunity of observing the general bearing and conduct of Van Dusen and defendant on the stand and their manner of testifying. It concluded that though Van Dusen had been convicted of the crime of larceny he was worthy of belief, and, believing his testimony, returned its verdict of guilty. There was a clear conflict in the evidence. There was competent evidence to support the verdict, the jury was correctly instructed with reference to reasonable doubt and there is no basis for disturbing the verdict. It is elemental that the jury passes on the credibility of witnesses, and the trial court, in overruling appellant's motion to direct a verdict in his favor, made at the close of the state's evidence and at the close of all the evidence, properly refused appellant's invitation to enter the exclusive domain of the jury. We find no error in this assignment.

Another proposition on which appellant relies...