196 Iowa 226 | Iowa | 1923
I. The defendant is the same as the defendant in State v. Boyd, 195 Iowa 1091. Many of the propositions relied upon for reversal in this case were decided adversely to the contention of appellant in the prior case, and as to all such propositions the decision is controlling. A witness who was present when the search was made of the premises of the defendant for stolen goods testified that he saw some rifles and guns standing by the door, and that there was a revolver lying on the counter. Just what relevancy or materiality the State claims for this testimony does not appear. The objection should have been sustained. It is, however, inconceivable that prejudice could have resulted from its admission. So far as is disclosed by the record, it was not referred to in. argument, or otherwise pressed upon the attention of the jury.
II. Appellant also complains because he was not permitted to prove a conversation between one Freshwater and the witness Hoskinson, the thief who stole and delivered the goods to the defendant, prior to the date on which the State claimed an ar
III. The court permitted counsel for the State to cx’ossexamine one of defendaxxt’s witnesses as to-a previous conviction of the crime of gambling. Counsel was permitted to pursue the inquiry somewhat further than is ordinarily permitted, but he elicited nothing further than the fact of the prior conviction. The ruling does not present a grouxxd for reversal.
IV. ' The defexxdant also offered evidence of an alibi. The witnesses examixxed in his behalf testified that the goods described in the indictmexxt and referred to in the evidence were purchased by appellaxxt’s wife, and received by ker ^rom Hoskinson during appellant’s absence, and under the belief on her part that Hoskinson was a traveling salesman, and without any knowledge whatever that the merchandise had beexx stolexx. The court gave the usual alibi instruction, with the exception of the following:
“Testimony tending to establish an alibi, being usually from members of the defendant’s family axxd easily manufactured, should be-closely scrutinized and carefully considered.”
The portion of the instruction criticized is that relating to the testimoxxy of defendant’s family. The wife of appellaxxt was a very material witness iix his defexxse, and her testimoxxy tended to show that appellaxxt was absexxt upoxx 'both occasioxxs when the merchandise was purchased, and also when it was received by her at the store. Her testimony was corroborated by that of other witnesses. The portion of the instruction criticized should not have been given. The defense of alibi, although easily manufactured, is, nevertheless, a legitimate one, and is, sometimes at least, supported by the testimony of witnesses of the highest character. The jury may have misunderstood the
V. The court also instructed the jury, in effect, that the defendant could not be convicted of receiving stolen property if it- was delivered to his wife, in his absence and without his knowledge, unless he retained it or secreted or assisted in secreting it in the store, after he learned that it had been stolen. The complaint of this instruction is that it does not tell the jury that such knowledge must have come to the appellant, and that the act of retaining and secreting the same must have been performed prior to the date the indictment was returned. The court gave the usual instruction, that the crime must have been committed prior to the finding of the indictment and within the period of the statute of limitations. Furthermore, the evidence of the State tended to show that, prior to - the receipt of the merchandise in question at appellant’s store, he entered into an arrangement with Hoskinson by which he agreed to purchase stolen merchandise from him and to provide a conveyance therefor from the point where it" was stolen to his store. The court might well have instructed the jury as suggested by appellant, but we are clear, from the record as a whole, that the omission was not prejudicial.
VI. Misconduct on the part of the county attorney in argument is also urged as a ground for reversal. The previous case was reversed upon this ground, and we confess that the language of the county attorney in this case does not merit approval. The defendant did not take the stand in his own behalf, and it is evident that the county attorney endeavored, without any direct
The county attorney appears to have kept within the rule of the above cases.- We do not deem it necessary to set out the portions of the argument complained of, nor to discuss the matter at length. The other matters discussed by counsel for appellant were passed upon in the previous case, and, while it is suggested that the court may have misunderstood the contention of counsel as to some of these matters, we are satisfied with the ruling announced.
On account of the error pointed out in the instruction relating to the defense of. alibi, the, judgment of the court below must be and is — Reversed.