The State v. Van Winkle

• Decision Date: 10 May 1890
• Citation: 45 N.W. 388,80 Iowa 15
• Parties: THE STATE v. VAN WINKLE
• Court: Iowa Supreme Court

45 N.W. 388

80 Iowa 15

THE STATE v. VAN WINKLE

Supreme Court of Iowa, Des Moines

May 10, 1890

Decided May, 1890.

Appeal from Van Buren District Court.--HON. H. C. TRAVERSE, Judge.

THE defendant was jointly indicted with one Henry Vance for the crime of larceny alleged to have been committed on the sixteenth day of May, 1887; the property stolen being one two-year-old heifer of the value of twenty dollars, and one one-year-old heifer valued at twelve dollars, the property of N. Ruby. A change of venue was granted to the defendant Vance, and, this defendant having pleaded not guilty, the case was tried to a jury, and a verdict returned finding him "guilty of the crime of larceny as charged," and the value of the property stolen to have been thirty-two dollars. Defendant's motion for a new trial being overruled, judgment was entered on the verdict, to all of which defendant excepted, and from which he appeals.

AFFIRMED.

Wherry & Walker, for appellant.

John Y Stone, Attorney General, for the State.

OPINION

GIVEN, J.

I.

We first notice defendant's exceptions to testimony, and to the giving and refusing certain instructions in connection therewith.

N. Ruby was permitted to testify that he found the cattle described at defendant's father's. Defendant contends that this was immaterial, as the state failed to show that he made his home there, or had anything to do with the place or the cattle, and in this connection complains of the sixth paragraph of the court's charge. There was testimony tending to show that defendant made his home at his father's. He was a single man, and, so far as appears, had no other home. He always came there to stay when not at work elsewhere, and when there worked on the farm. In his testimony he speaks of the place as "our house." The presumption of guilt that arises from recent unexplained possession of the stolen property does not attach until the possession is shown. Whether the accused had possession was a question for the jury. This testimony was not only competent as tending to show that the defendant had possession of the cattle, but also as bearing on the question whether the cattle had strayed or were stolen.

The part of the instruction complained of is as follows: "If the animals in question were found on the farm of defendant's father a short time after they were stolen, if they were, and even if that was defendant's home, still this would not necessarily put said animals in possession of defendant, unless you find that he exercised control over the same under a claim in himself." This instruction was certainly as favorable to defendant as he could ask.

Mr. Ruby was also permitted to testify that he had two other cows taken at the same time, which he found soon after at Mr. Wilmonth's. Mr. Pope testified to seeing those two cows at his place the next morning after he had seen Vance and the defendant pass in the evening. This testimony of Ruby was competent as tending to show that the cattle had not strayed, but were stolen.

II. Robert Graves was permitted to testify that a warrant was placed in his hands for the arrest of the defendant, and that he searched for defendant, and could not find him. Sheriff Wilkin was permitted to testify that he found defendant in Dakota, at his brother's. That defendant was brought to St. Paul by an officer, where he received him. That the first thing he said to defendant was: "This is Bill Van Winkle?" He said: "No sir; you are mistaken in the man." That coming down from St. Paul the defendant did not acknowledge his identity, would not say anything,--but when brought into the court room acknowledged his name to be William Van Winkle. The court instructed the jury: "If from the evidence you find that the defendant, shortly after the commission of the crime charged, fled from the state to avoid arrest, or if you find that when he was arrested he denied his name and identity for the purpose of evading justice, then such facts are circumstances which prima facie are indications of guilt, unless properly explained." Appellant complains of this instruction, contending that there was no proof that the defendant had been charged with the crime before leaving the state, or at the time he said, "You have made a mistake in the man." There was evidence tending to show that the defendant left on the day the officers were searching for the cattle, and after the arrest of his co-defendant. He claimed to have gone in pursuance of a letter of April 3 from his brother, and yet he did not go until about June 14, the time of the occurrence just complained of. We think there was evidence from which the jury might infer that the defendant knew that he was or would be charged with this crime when he left, and at the time the sheriff received him in St. Paul. This was sufficient to entitle the testimony to go to the jury, under the instruction given.

III. The defendant examined Albert, John and Guy Van Winkle, who had testified on the preliminary examination before Esquire ALTON. The state, having laid the proper foundation, called Esquire ALTON and others as to certain statements made by defendant's witnesses on their former examination. Defendant's argument is as to whether there was any conflict in the statements of his witnesses, rather than the competency of the testimony. The testimony was clearly competent. It was for the jury to say what conflict there was, and the effect it should have upon the testimony of defendant's witnesses. The state introduced testimony tending to impeach the character of some of defendant's witnesses. This was clearly competent. What is said as to the weight it was entitled to was proper for the consideration of the jury, but does not go to its admissibility.

IV. Harry Vance, jointly indicted with the defendant, was called as a witness on behalf of the state. The record shows that after answering that he was acquainted with the defendant, he was asked if on...