188 Iowa 629 | Iowa | 1920
It may be granted the citations for the State hold defendant may be convicted though the car was owned by the
There is an attempt to buttress this evidence by arguing that, “there is no evidence to indicate that any other railroad company had any depot or any tracks anywhere near this freighthouse.” The defendant had no burden to show that the track did not belong to the Illinois Central, and all lack of evidence injures nothing but the case of the State.
More persuasive than is the argument based on the weakness of evidence tending to show someone other than the Illinois Central owned said tracks is the fact that, if they did belong to that company, it was easy to show that fact. And here there is almost room for the operation of. the rule that a failure to produce evidence peculiarly and readily available to the parties having the burden raises a presumption that no such evidence exists.
On the authority of State v. Carson, 185 Iowa 568, State v. O’Donnell, 176 Iowa 337, and State v. Saling, 177 Iowa 552, and cases therein cited and approved, we hold the evidence fails to support the charge that the Illinois Central had “use, possession, and control” of said car.
“Q. Was there anything else in the car door? A. There was a few boxes shoved to the car door. I didn’t examine the rest of them, just the one he was going to drop out. Q. What was there in this car besides this box? A. I didn’t
The only other evidence on this point is that a witness saw some pasteboard boxes in the car, near the door.
Is this evidence that the car was one in which these things were kept either for use, sale, or deposit? The evidence does not show for what use either the Soo Line, the owner of the car, or the Illinois Central, its alleged possessor, kept said goods in this car, nor show for what uslf" anyone kept them there. There is no evidence that these goods were in the car for sale or deposit. It may be the legislature should not have hampered the State by making the commission of the crime depend in part upon the purpose for which goods were kept in the car broken into. But it certainly has made that element a part of the statute crime. And the State recognizes this, by alleging in the indictment that said goods were kept in the car entered, for use, sale, and deposit.
The verdict lacks support because there was a failure to prove this allegation. This is no holding that it cannot be established by evidence either direct or circumstantial. It is no attempt to settle what evidence will send such allegation to the jury. What we decide is that the total of all the evidence in this case is too weak to sustain this charge in the indictment.
IV. We give no consideration to the assignment that the court erred in giving Instruction 10, because no exceptions to instructions seem to have been taken.
Y. The arguments suggest there is a controversy over whether the prosecution was not under a statute which does not authorize the penalty the court inflicted. In view of our granting a new trial, and of the manner in which this
The judgment below must be reversed. — Reversed <md remanded.