15 Iowa 72 | Iowa | 1863
To reverse this conviction three points are made:
Fir^t. That the Court erred in excluding certain testimony.
Second. In refusing an instruction asked by defendants.
Third. That the verdict was not warranted by the evidence, and that the Court erred, therefore, in overruling the motion for a new trial.
I. The defendants introduced, as "a witness, the officer who made the arrest, who, in his examination, in chief, stated, without objection on the part of the State, that as he was bringing the prisoners to town, they passed Eambo’s house; that Elliott wished to go in and see if the family would recognize him; that they went in and stayed about twenty minutes. Mrs. Eambo walked around in front of Elliott, looked at him and said she thought he was the man.The question was then asked by the prisoner’s counsel: “What reply did Elliott make to the statement of Mrs. Eambo,” which was objected to by the State, and the objection sustained. Appellants -now insist that as a portion of the conversation, or what Mrs. Eambo said, had gone to the jury without objection, they were entitled to the reply; and especially as they proposed to prove that Elliott then promptly proclaimed his innocence and insisted that Mrs.: Eambo was mistaken.
Nor is the case of Dunham v. Simmons, 3 Hill, 609, applicable, for there it is only held that, if testimony which is inadmissible, be objected to on untenable grounds, and the true ground be not mentioned, the latter will be deemed waived. In Judah v. Mieure, 5 Blackf., 171, the ruling is, that when statements' of a third person are given in evidence, without objection, their admission cannot be after-wards assigned as error. Here there is no objection by the State that Mrs. Rambo’s statements were admitted. The People v. Norton, 5 Selden, 176, recognizes substantially the same rule as the case in 5 Blackford, and is equally inapplicable to the question now before us.
H. A witness, l^Trs. Gray, testified to a certain conversation heard by her, between the prisoners, while they were confined in jail After detailing what she heard, she says there was more said, which she did not understand; sometimes she could hear them and sometimes not; that they conversed in a loud whisper, and said many things which
The following instruction upon the same subject was asked and refused: “When a witness shows by his own evidence that he did not hear all of a conversation, and did not and could not understand all thereof, and gives in evidence only a part, such evidence is entitled to but little weight.”
In refusing this instruction, the court did not err. As a proposition under some possible state of facts, it might be true. As applied to this case, it went too far. If a prisoner is heard to make an admission that he committed
NI. Should a new trial have been granted ? The evidence is all before us, .and is contained in the testimony of some forty witnesses. That the crime charged was committed at the time and place claimed by the State; by some one, is undisputed. The controverted question is, whether defendants were the persons committing the same. There is certainly testimony connecting them with it, as strong as is often found in this class of cases. " Aside from the conversation overheard between them by Mrs. Gray, above adverted to, there is the testimony of three witnesses precisely identifying one of them while in the house, and of one witness identifying the’ other. The burglars, if the witnesses are to be believed, lighted a candle; were in the house an hour; broke open a chest; took money therefrom ; searched in various places for other money; threat
We adhere to the rule recognized in The State of Iowa v. Tomlinson, 11 Iowa, 401, that a conviction clearly contrary to the weight of evidence should be set aside, and that in the consideration of such evidence greater latitude is permitted than would be countenanced in civil cases. If this was a civil action, we should unhesitatingly refuse to interfere with the verdict. -For we could- not say that there was such a preponderance of evidence against the finding as to justify the conclusion that the jury had acted rashly, or under circumstances indicating a want of free and unbiased judgment. In view of the greater latitude allowed in the examination of a case affecting the liberty of the individual, are we justified, upon all the testimony submitted, in coming to the same conclusion in the present instance ?
It will be seen that this is not a-case where any material allegation of the indictment is unproved. That is to say every fact is established necessary to make out the offense against some one. Nor is th; offense like that charged against Tomlinson, 11 Iowa, supra. There the defendant was indicted for rape, “ an accusation hard to be proved and harder to be defended against.” From this fact, growing out of the very nature of the offense, courts have always been inclined to guard with care the rights of the prisoner, and to require such a charge to be very well
Again, the defense set up to rebut the case made by the prosecution, is one, the sufficiency of the testimony to establish which, might properly be left to the jury. In its consideration much would depend upon the character of the witnesses — their means of knowledge — their relation to the parties — their demeanor upon the stand — the agreement or non-agreement of their statements with the facts otherwise established, and many other matters not necessary to refer to in detail. And while a jury is not justified in arbitrarily disregarding the testimony of a witness, the circumstances which properly influence them are so various 'and so often impossible to be known by this court, that in case of conflict, there should be great hesitation before their conclusion should’be disturbed. Then, again, whether those accused were in fact in another place, at the time the offense was committed, is' frequently one depending upon mere opinion, and this because that the exact time becomes a material inquiry. Thus, if the witnesses for the State in this instance fixed the hour of the night earlier than it really was, and the other witnesses did not see the prisoner at so late an hour as they suppose, much strength would be taken from the position of the defense. ' And the
It was the duty of the'jury to be satisfied of the guilt of the accused beyond all reasonable doubt. And this doubt is removed when they have arrived at that certainty “ which convinces and directs the understanding, and satisfies the reason and judgment, of those who are bound to act conscientiously upon it.” Commonwealth v. Webster, 5 Cush., 320. And while we recognize the duty of the court to interfere with an unjust verdict, it should nevertheless be well satisfied, when the testimony is- conflicting, of its insufficiency to convince the judgment, reason and conscience of the triers, before setting- aside the conclusion arrived at, as it must be presumed, after the requisite patient thought and attention. And especially is this so when the court below has refused to disturb such verdict.
We conclude, therefore, that while the jury in this case might, consistently with the testimony, have acquitted the prisoners, the verdict found is nevertheless not so far contrary to the testimony, under the well settled rules governing their deliberations, and prescribing their rights and duties, as fo authorize us to say that a new trial should have been granted.
Affirmed.