197 Iowa 538 | Iowa | 1924
At the time of the transaction involved in the indictment in this case, appellant conducted a business in Eldora known as the “rent a Ford and drive it yourself” business, and a secondhand automobile business. He had a storage room that accommodated eight or ten cars, and handled about one hundred secondhand cars during the year 1920, and about half that number prior to September, 1921.
On August 26, 1921, one Wallukait, who is a resident of Dakota City, Iowa, attended the fair at Fort Dodge. He drove a Ford touring car to the fair, and parked the same inside the fair grounds, at about two o’clock in the afternoon. At five o’clock he discovered that the car had been stolen. Some days later, the car was identified by Wallukait. It was then in the private garage of one Norman, at New Providence, about nine miles southwest of Eldora. Norman had purchased the car from appellant.
.It appeared that the engine numbers on the car were originally 4956147, and that they had been changed to 4973450.
It also appears from the evidence that, on or about the first day of August, 1921, one Ivey made application at the office of the county treasurer of Kossuth County, at Algona, for registration of an automobile. He gave his name as George E. Larson, described the car as a Ford car, and gave the number thereof as 4973450. This certificate showed on the reverse side a transfer purporting to be executed by the said George E. Larson, and showing the sale of said car to appellant. This transfer certificate was acknowledged before one Harris, a notary public at Eldora, on the 1st day of September, 1921. The registration certificate obtained at Algona was dated some twenty days before the car in question was stolen. ■
There is also evidence in the record that, in August, 1921, appellant purchased, at a hardware store in Eldora, a set of steel figure dies, about a quarter of an inch high. ■
It appears that the car in question was brought by Ivey to Eldora, and sold and delivered to appellant, who in turn dis
It also appears that it was the custom of appellant to secure the certificate of acknowledgment to signatures on automobile registration cards and transfers to be made by a notary public without having the parties present at the time.
The foregoing is a sufficient statement of the facts for the purposes of this appeal.
I. The name of one L. W. Harris was indorsed on the indictment as a witness before the grand jury, and he was used as a witness upon the trial.
The court did not err in refusing to grant appellant a new trial, upon the showing made in regard to this juror.
There is no claim that there was any communication whatever with either group of jurors by any person. The appellant claims that the jury were not kept together, as provided by Code Section 5387.
This statute, like all statutes, must receive a reasonable construction. It cannot always be literally and strictly obeyed. We have discussed the question herein involved in the case of McNider v. Fisher, 197 Iowa 523, involving a similar statute, Code Section 3711.
As bearing on the question, see State v. Bowman, 45 Iowa 418; State v. Wart, 51 Iowa 587; State v. Fertig, 70 Iowa 272; State v. Griffin, 71 Iowa 372; State v. Wright, 98 Iowa 702; State v. Foster, 136 Iowa 527; State v. Towne, 180 Iowa 339; State v. Bogardus, 188 Iowa 1293; McNider v. Fisher, 197 Iowa 523.
There was no reversible error here.
III. Appellant complains of the introduction in evidence
It was also proper for the State to show the course of procedure by Ivey, who it claimed stole the cars and caused the numbers to be changed thereon, and it was proper to show his method of obtaining the false registration certificates, even before the cars were stolen, and in changing, or procuring a change of, the engine numbers of the cars to conform to the certificates. Even though appellant was not present at the obtaining of the false registration certificates, the evidence was properly admissible as one link in the chain of evidence establishing the fact that the cars were stolen property. The evidence was proper to be considered in connection with other evidence offered in the case, as tending to show knowledge on the part of appellant thaj. the ears in question were stolen property. As bearing on the question, see State v. Scott, 136 Iowa 152.
It is urged that the question calls for the identity of the party who made the two signatures, and not for the similarity of the handwriting, which, it is urged, would be the only competent inquiry.
We think the objection is hypercritical and without merit. The question was proper, and the objection thereto was properly overruled.
Tbe court did not err in receiving tbis evidence, under tbe circumstances. It bad a legitimate bearing on tbe question of tbe manner of tbe operations of appellant in connection witb tbe question of bis receiving stolen property. It is true that some of tbis evidence refers to a car or cars other than tbe car in question in tbis case. Tbis evidence was competent for tbe purpose of showing a course of dealing between appellant and tbe man Ivey, as bearing upon appellant’s guilt in receiving property, knowing tbe same to have been stolen.
VI. It is strenuously urged by appellant that tbe court permitted a too wide latitude in tbe cross-examination of appellant, who was a witness in bis own behalf.
7. Witnesses: cross-examma-t tion: immaterial questions. - “When the defendant testifies in bis own behalf, he shall be subject to cross-examination as an ordinary witness, but tbe State shall be strictly confined therein to tbe matters testified to in tbe examination in chief.”
C°de Seetion 5485 Provides:
We recently considered tbis section of tbe statute in the case, of State v. Burris, 194 Iowa 628, 637. See, also, State v. Scott, 194 Iowa 777. We are not disposed to depart from the salutary rule announced in said eases in respect to tbe cross-examination of a defendant who is offered as a witness in bis own behalf. But prejudicial error does not appear in tbis case. Tbe witness was asked, “Do you remember tbe Ford touring car Doctor Roberts was driving at tbe time be was arrested?” Over objection, tbe witness answered, “I do not remember tbe exact Ford, no.” Tbe objection might well have been sustained, on tbe ground that tbe question was immaterial; but we fail to see bow there was any prejudice to appellant by reason of tbe admission of tbe evidence. No attempt was made to in any way connect appellant witb tbe car or witb tbe party referred to in tbis interrogatory.
Error is also predicated on tbe action of tbe court in over
Appellant was also cross-examined in regard to his manner of .taking cards to the notary public to have him acknowledge the signatures of parties thereto when the parties were not present. The witness answered: “I remember the parties that Mr. McFarland acknowledged, if he did, were signatures that he knew.”' The question was not cross-examination, and appellant’s objection thereto should have been sustained. However, we do not think that appellant suffered any prejudice by reason of this cross-examination. The witness McFarland had already testified in regard to the manner of taking such acknowledgments. There was no dispute of this evidence. The answers of appellant on cross-examination were more favorable to appellant than the testimony of the witness. We would not feel warranted in reversing the case because of this cross-examination, upon this record.
Complaint is made of Instruction No. 5.
In Instruction No. 1, the court set out the indictment in full. In Instruction No. 5, the court told the jury that, under the indictment, the appellant was charged with committing the offense in three different ways: First, by merely buying the stolen property without receiving the same, when he knew it to have been stolen; second, by receiving stolen property when he knew the same had been stolen; and third, by aiding in concealing stolen property when he knew the same had been stolen. The instruction then definitely and clearly stated to the jury
The instruction definitely limited the jury to the consideration of the single' charge upon which the State elected to. rely. The instruction was not only proper in the form in which it was given, but appellant might well complain if the court had failed to give such an instruction, in view of the form in which the indictment was drawn. There was no error at this point.
Neither of said instructions is subject to the criticism lodged against it. As already pointed out, the court had previously instructed' the jury that appellant was on trial under this indictment for the sole charge of receiving stolen property. In the instructions complained of, the court used the singular number, and referred to “the charge” made in the indictment. The jury could not, in view of the other instructions, have failed to understand that the only charge which they were to consider was the single charge of receiving stolen property.
These instructions were not erroneous.
IX. Instruction No. 11 is complained of as being contradictory, and as calculated to mislead the jury.
We find no errors in any of the matters complained of by appellant that require a reversal of the case. The evidence in behalf of the State presented a question for the determination of the jury, and the verdict has support in the evidence. The judgment appealed from must be, and it is,—Affirmed.