70 Iowa 176 | Iowa | 1886
Tbe offense of which tbe defendant was convicted was committed on the night of the twenty-third of June, 1882. The victim of the crime is one Christopher Wagner, who, at the time of its commission, was over eighty years old. He lived alone, in the country, and on the night in question his house was entered by two masked men, who
I. Wagner was examined as a witness on the trial, but lie did not undertake to identify the defendant as one of the
The district court instructed the jury that defendant could not be convicted on the testimony of Hevlin, unless he was corroborated by such other evidence as tended to connect him with the commission of the offense. The instruction was substantially a quotation from the statute. Code, § 4559. We have examined the record with care, and have been unable to find any evidence whatever, except the testimony of Hev-lin, which tends to connect the defendant with the crime. One witness testified that he saw defendant and Hevlin and Stodgell together about four o’clock in the afternoon of the twenty-third of June, at a place some three miles from Wagner’s residence, and that they appeared to be conversing together. The crime was committed some four or five hours after that. Clearly, the fact that he was seen in conversation with Hevlin, at that time and place, had no tendency to prove that he participated in the crime. The wife of Stodgell testified, in effect, that she had heard her husband say that the robbery was committed by Hevlin and defendant, and that they had given him part of the money taken from Wagner. But this was mere hearsay, and should have been excluded.. We think the verdict should have been set aside as being unsupported by evidence.
II. We wfill now consider the question raised by the demurrer to defendant’s plea of former acquittal. The offense
It will be observed that larceny is an essential'element of both offenses. In the one case, the larceny is committed in a dwelling house in the night time; in the other, the property is taken from the person of another, and the taking is accomplished with force or violence, or by putting the party in fear. Under § 4466, a defendant who is tried on an indictment which charges him with the commission of either of those crimes might be convicted simply of the larceny of the property described in the indictment; for the commission of that offense would necessarily be included in that with which he was charged, and an acquittal of either of those crimes is likewise an acquittal of the larceny of the property, and a bar to an indictment for that offense. Section 4365. The acquittal of defendant on the former charge, then, is a judicial determination that he was not guilty of the larceny of the property described in that indictment, which is the same property that is described in the indictment on which he was convicted. That acquittal is a bar, not only to an indictment for the larceny of the property, but for any other offense of which such larceny is an essential element. It has been held that an acquittal for manslaughter is a bar to an indictment for murder; (Scott v. U. S., Morris, 142; Hurt v. State, 25 Miss., 378; Burns v. People, 1 Parker, 182;) and the reason of that holding is that the acquittal is a judicial determination that the defendant did not unlawfully take the life of the deceased, and consequently was not guilty of any offense of which such unlawful killing is a necessary element. The present case is clearly within the principle of that holding.
The judgment will be reversed, and the cause remanded.
REVERSED.