State v. Van Winkle

Given, J.

— I. We first notice defendant’s exceptions to testimony, and to the giving and refusing certain instructions in connection therewith.

1. Larceny of cattle: evidence. N. Ruby was permitted to testify that he found the cattle described at defendant’s father’s. Defendant contends that this was immaterial, as the state failed to show that he made his home there, or had anything to do with the place or the cattle, and in this connection complains of the sixth paragraph of the court’s charge. There was testimony tending to show that defendant made his home at his father’s. He was a single man, and, so far as appears, had no other home. He always came .there to stay when not at work elsewhere, and when there worked on the farm. In his testimony he speaks of the placeas “our house.” The presumption of guilt that arises from recent unexplained possession of the stolen property does not attach until the possession is shown. Whether the accused had possession was a question for the jury. This testimony was not only competent as tending to show that the defendant had possession of the cattle, but also as bearing on the question whether the cattle had strayed or were stolen.

2.-: instruction. The part of the instruction complained of is as follows: “If the animals in question were found on the farm of defendant’s father a short time after they were stolen, if they were, and even if that was defendant’s home, still this would not necessarily put said animals in possession of defendant,' unless you find that he exercised control over the same under a claim in himself.” This instruction was certainly as favorable to defendant as he could ask.

3. -: evidence. . Mr. Ruby was also permitted to testify that he had two other cows taken at the same time, which he found soon after at Mr. Wilmonth’s. Mr. Pope testified to seeing those two cows at his place the next morning after he had seen Vance and the defendant pass in the evening. This testimony of Ruby was competent as tending to show that the cattle had not strayed, but were stolen.

4. -: badges of guilt: instruction. II. Robert Graves was permitted to testify that a warrant was placed in Ms hands for the arrest of the defendant, and that he searched for defend-ant, and could not find him. Sheriff Wilkin . was permitted to testify that he found defendant in Dakota, at his brother’s. That defendant was brought to St. Paul by an officer, where he received him. That the first thing he said to defendant was: “This is Bill Yan Winkle?” He said: “No, sir; you are mistaken in the man.” That coming down from St. Paul the defendant did not acknowledge his identity, would not say anything, — but when brought into the court room acknowledged his name to be William Yan Winkle. The court instructed the jury: “If from the evidence you find that the defendant, shortly after the commission of the crime charged, fled from the state to avoid arrest, or if you find that when he was arrested he denied his name and identity for the purpose of evading justice, then such facts are circumstances which prima facie are indications of guilt, unless properly explained.” Appellant complains of this instruction, contending that there was no proof that the defendant had been charged with the crime before leaving the state, or at the time he said, “You have made a mistake in the man.” There was evidence tending to show that the defendant left on the day the officers were searching for the cattle, and after the arrest of his co-defendant. He claimed to have gone in pursuance of a letter of April 3 from his brother, and yet he did not go until about June 14, the time of the occurrence just complained of. We think there was evidence from which the jury might infer that the defendant knew that he was or would be charged with this crime when he left, and at the time the sheriff received him in St. Paul. This was sufficient to entitle the testimony to go to the jury, under the instruction given.

5. Criminal evidence: impeachment. III. The defendant examined Albert, John and Guy Yan Winkle, who had testified on the preliminary examination before Esquire Alton. The state, having laid the proper foundation, called Esquire,Alton and others as to certain statements made by defendant’s witnesses on their former examination. Defendant’s argument is as to. whether there was any conflict in the statements of his witnesses, rather than the competency of the testimony. The testimony was clearly competent. It was for the jury to say what conflict there was, and the effect it should have upon the testimony of defendant’s witnesses. The state introduced testimony tending to impeach the character of some of defendant’s witnesses. This was clearly competent. What is said as to the weight it was entitled to was proper for the consideration of the jury, but does not go to its admissibility.

6. -: self-crimination of defendant: personal right: waiver. IV. Harry Vance, jointly indicted with the defendant, was called as a witness on behalf of the state. The record shows that, after answering that he was acquainted with the defendant, he was aske<3- if on May last he was with defendant at their house. The witness then stated: “I want to claim my privilege, and decline to answer any question that would tend to criminate myself. ” The court announced: “The witness is not bound to testify to anything that would criminate himself;” whereupon the witness retired. Without any further proceedings intervening, the witness .was recalled; whereupon defendant’s attorneys objected to his testifying, because he had claimed his privilege. The court held that the privilege was personal to the witness; that the defendant could not claim it in his favor; that it appeared from the records of the court that the witness testified before the grand jury in this case, and there disclosed what he claimed to know about it, without claiming his privilege; therefore he ought not to be permitted to claim it here. These rulings are fully supported by the authorities. It has been held in some states that, when a witness gives testimony to a part of a transaction without claiming his privilege, he may be compelled to state the whole, and to submit to a full cross-examination, notwithstanding his answers tend to criminate or disgrace him. Com. v. Pratt, 126 Mass. 462. The reason for this ruling applies with greater .force to a case like this. The only reason for excluding this testimony is that the witness claimed his privilege. Had he waived his privilege, and testified, the defendant had no grounds for- objecting. If his privilege was denied him wrongfully, the wrong was to the witness, and not to the defendant, and the testimony was admissible as to the defendant, though it might not thereafter be used against the witness.

7. -: alibity burden of proof: instruction. V. The defendant introduced testimony tending to establish an alibi. The court instructed as follows : “ Defendant claims that, at the time said cattle are said to have been stolen, he was absent from the place where the larceny was committed, if it was. This evidence in law is known as an “ alibi." The burden of proof is on the state to establish beyond a reasonable doubt that the larceny charged was in fact committed. But, if the state has made this proof, then the burden of proof is on the defendant to establish by the weight or preponderance of the evidence his defense of alibi-, but, if the entire evidence upon the whole case raises a reasonable doubt as to defendant’s guilt, then you should acquit him.” Appellant contends that this instruction relieved the state from the burden of proving that the defendant stole the cattle, and made it incumbent upon the defendant to prove that he did not steal them. The concluding sentence precludes such a .construction of the charge.

8. -: corroboration of accomplice: question for court and jury. YI. Appellant’s further contention is that the verdict is not supported by the evidence, for that without the testimony of Harry Yance there is 110 evidence to convict; that, according to 1YS own testimony, he was an accomplice, and is not corroborated by other evidence tending to connect the defendant with the commission of the offense. That Yance is avowedly an accomplice, and that without his testimony there was not sufficient evidence to convict, is manifest from the record. The corroboration required is “such other evidence as shall tend to connect the defendant with the commission of the offense.” Code, sec. 4559. “If there is evidence which corroborates the accomplice, and tends to connect the defendant with the commission of the offense, its sufficiency is for the jury to determine.” State v. Deitz, 67 Iowa, 220. “We suppose it is a question for the court to determine whether there is any corroborating evidence in cases of this character, but it is for the jury to weigh and determine the effect of such evidence and its sufficiency, and each case must be determined upon its own facts, because, in the nature of things, the corroboration cannot be the same in any two cases.” State v. Miller, 65 Iowa, 60. “It is not necessary that an accomplice should be corroborated in every material fact to which he testifies. ‘ If the jury are satisfied that he speaks the truth in some material part of his testimony, in which they see him confirmed by unimpeachable evidence, this may be ground for their believing that he also speaks the truth in other parts, as to which there may be no confirmation. ” State v. Allen, 57 Iowa, 435; State v. Schlagel, 19 Iowa, 169. We think there was sufficient evidence tending to corroborate the testimony of Yance to allow it to go to the jury. The testimony of Mr. Pope that he saw the defendant and Yance together pass his house in the evening, going in the direction of Ruby’s, and that on the following morning the two cows were at his place, the place where the cattle were found, and defend ant’s relations to that place, and the testimony as to his leaving the state and denying his identity, all tended to connect him with the commission of the offense, and to corroborate Yance. True, the testimony was controverted by the defendant, but it was for the jury to say what of it was disproven or explained. We think there was not only sufficient corroboration to allow the testimony of Yance to go to the jury, but sufficient to support the verdict. ■ There was no error in the instruction given on this subject. A careful examination of the entire record fails to disclose any errors. Our conclusion is that the judgment of the district court should be Affirmed