On a previous trial under the same indictment the defendant was found guilty of the offense charged, but on appeal to this court the conviction was reversed for error' in instructions given. State v. Kimes, 145 Iowa, 346. On that appeal it was held that the evidence was sufficient to sustain a verdict, and, as the evidence for the state on this trial was substantially the same as on the former trial, we need not enter upon a further discussion of its sufficiency. Indeed, it is not now seriously contended for the defendant that the verdict should have been set aside for want of sufficient evidence. The nature of the alleged offense sufficiently appears from the statement and opinion on the former appeal. It is enough now to say that the property alleged to have been stolen by the defendant was a set of double harness* and that the principal portion of the evidence of his guilt related to his being found in possession of the harness after it was stolen without reasonable explanation of such 'possession consistent with his innocence. The alleged errors now necessary to be considered are those relating to the admissibility of evidence and the correctness of the instructions given to the jury.
of such evidence. II. The further contention that such proof deprived defendant of his statutory right not to be a witness in a criminal prosecution save at his own election (Code, section 5484) is equally without merit. The fact that he elected on the present trial not to . become a witness did not deprive the state of
the right to prove as against him statements made in his testimony on a former trial. Such statements thus proven would not constitute testimony of the defendant on this trial, but were admissible against him on the same ground as that on which any other statements or declarations made in his own interest might be proven against him. State v. Johnson, 72 Iowa, 393; State v. Carroll, 85 Iowa, 1; State v. Van Tassel, 103 Iowa, 6; People v. Arnold, 43 Mich. 303 (5 N. W. 385, 38 Am. St. Rep. 182); State v. Oliver, 55 Kan. 711 (41 Pac. 954) ; State v. Simmons, 78 Kan. 852 (98 Pac. 277).
4' ^rimfnattag1” IV. On the first trial witnesses McOloud and Kessler, called for the defendant, testified that on December 28, 1907, which was three days after the alleged larceny, they were present at defendant’s farm when he bought the set of harness in question from a peddler. On the last trial McOloud was introduced as a witness for the prosecution, having been brought from the reformatory at Anamosa where he was serving a sentence for a felony, and testified substantially
5. Same: instructlonY. In connection with the discussion in the preceding paragraph, we may properly notice the objections made to the instruction in which the bearing of the evidence relatbig 1° the false testimony of McCloud and Kessler on the former trial was explained to the jury. In this instruction the jurors were told that, if they believed that defendant after being charged with the commission of the larceny and before the former trial “knowingly paid, induced, or attempted to induce certain witnesses to testify falsely concerning any material facts in this case, such conduct on the part of the defendant would be a circumstance to be considered by you in connection with all the other facts and circumstances in evidence in determining the guilt or innocence of the defendant, and such fact if found by you is a circumstance which prima facie is indicative of guilt and should receive such consideration and weight as you deem it entitled to.” This instruction, as it seems to us, correctly states the effect which the jurors might give to the fact of procuring false eivdence on the former trial, if that fact was established. The use of the expression “prima facie indicative of guilt”
Tv<!TRTTrTTnN«! VI. With respect to evidence of good moral character of the defendant, an instruction was asked for defendant which was perhaps unobjectionable, but the court in the instruction given covered the subject more fully, and, as no complaint is now made of the instruction which the court gave in this respect, we need not further consider the refusal of the court to give in identical language the instruction asked.
•j. Larceny: recentiy stolen property. VII. With reference to the effect to be given by the jury to evidence of recent possession of the stolen property by the defendant, the jurors were instructed that such possession “is presumptive evidence that the . . . person m whose possession the property is \ L r 1 J found is the person who stole the property, unless the facts and circumstances given in evidence satisfactorily explain such possession, and show it to have been acquired otherwise than by said larceny or raise a reasonable doubt as to whether defendant came into such possession otherwise than by said larceny.” On the former appeal in this case we held an instruction to be erroneous in which it was stated that, if the stolen property was found in appellant’s possession soon after the theft, then he was presumptively guilty, unless “he satisfied the jury that he came rightfully into such possession.” The criticism was that although the recent possession did not appear to be rightful or honest, unless it appeared not to have arisen out of the larceny charged, it was no evidence of the guilt of such larceny. In the instruction above quoted there is no such difficulty. The court did not indicate in its former opinion that the instruction then considered was objectionable because it threw upon the defendant the burden of satisfying the jury that the recent possession did not arise from the larceny, and on this second trial we ought not to reverse the lower court on account of an objection to an
Aside, however, from the suggestion just made, it is plain that the instruction taken as a whole was not objectionable. If the facts and circumstances disclosed by the evidence satisfactorily explained defendant’s possession or raised a reasonable doubt in the minds of the jurors as to whether defendant came into the possession of the harness otherwise than by stealing them according to the language of the court, the fact of recent possession was not to be considered in determining defendant’s guilt. The requirement that the explanation of the recent possession must satisfy the jury that it did not arise out of the larceny charged would in itself be erroneous. State v. Manley, 74 Iowa, 561; State v. Miner, 107 Iowa, 656. But the qualification added in the instruction now under consideration brings it into conformity with the rules stated in those cases; or, at any rate, the qualification removes all prejudice from the erroneous statement. It would have been better no doubt to omit the clause relating to “the satisfaction of the jury,” but, read as a whole, the instruction could not have been misleading. Similar criticisms are made to other instructions on the same subject, but they are sufficiently answered by what has been just said relating to the instruction referred to. By none of the instructions given could the jurors have been misled into thinking that the defendant had the burden of satisfying their minds by a preponderance of the evidence that the possession of the stolen property was not the result of the larceny charged; on the contrary, in each of them the jurors were expressly told that only in the event that the evidence failed to raise a reasonable doubt as to whether defendant came into the possession of the harness otherwise than
character’ of accused ' VIII. .On cross-examination of a witness put on by the defendant to prove good moral character, the state was allowed to aslc the witness, over defendant’s obj ection, whether there was not some talk in .the community about specific transactions of the defendant which tended to indicate that he was not in good repute. While the rule is that in rebutting evidence of good moral character offered by defendant the state can not introduce evidence as to particular transactions, it is certainly competent on cross-examination of a witness who has testified as to defendant’s good moral character to ask whether there have not been rumors or reports in the community as to his bad character with reference to particular transactions. The existence of such rumors or reports would certainly tend to lessen the weight of the witness’ testimony as to the defendant’s good standing in the community. In short, the crossrexamination related to the very matter inquired about on direct examination, to wit, the ■ repute of the ■ defendant in the community as to good moral character. State v. Arnold, 12 Iowa, 479; Moulton v. State, 88 Ala. 116 (6 South. 758, 6 L. R. A. 301).
io. Same: misconduct. X. After referring to the fact that defendant by way of explanation of the possesison of the harness had made false statements as to when and where he procured it, which were inconsistent with the testimony of Kubias on the former trial that he himself had manufactured it for the owner about eight months before the time of the alleged larceny, the county attorney said: “When Kimes found this situation, it was necessary for him to trump up some other story. Dave Kimes could have gone on the witness stand himself and given that story, and no one could have said him nay. .Nó one could have disputed his story. It would have been subject only to the identification of the harness, and, if that could not have been identified, Dave Kimes’ story might have passed.” It is not entirely clear from the record whether in this quotation the county attorney was referring to the failure of the defendant to testify on the second trial or to his failure as a witness on the first trial to deny or explain material facts; but we reach the conclusion that the reference was of the latter character. Certainly the jurors on the second trial could not have understood, except by remote inference, that the county attorney was calling their attention to the failure of defendant to testify on the second trial. The county attorney may without violation of the statutory provision (Code, section 5484) call attention to the fact that certain evidence against the defendant is not controverted, although the natural and
11. Same: review: waiver. However this may be, this question argued was not raised in this case at the proper time nor in the proper manner. The statute provides that for reference by the attorney for the prosecution to the .failure 0£ ¿efen¿an^ £0 testify in his own behalf the defendant shall be entitled to a new trial. If a new trial is not asked on this ground in the lower court then improper reference is ndt ground for a reversal on appeal. Grier v. Johnson, Judge, 88 Iowa, 99. The objection is waived if the counsel for defendant interposed no objection on account of the improper argument until a review of the case is sought on appeal. State v. Smith, 132 Iowa, 645. And this is manifestly right, for, if defendant is entitled to a new trial on this ground, he should not be allowed to delay the administration of justice by postponing until a hearing on appeal an objecwhich which, if properly taken, would result in a setting aside of the verdict and the granting of a new trial as soon as the objection was brought to the attention of.the court.
12. Same: new tna1’ In the case before us, counsel for defendant urged as a ground for a new trial the “illegal conduct and statements by the county attorney in his closing argument to the jury,” but, so far as the record shows, he did not in any way indicate that his specific elaim was a violation by the county attorney of the statutory provisions above referred to. Clearly it was not the duty of the trial court to review the entire closing argument of the county attorney for the purpose of seeing whether there might be found therein some reference to the failure of the defendant to testify as a witness.
The judgment of the trial court is affirmed.