State v. Cruise

1. Criminal law! evidence: declarations of prisoner. When a circumstance in the conduct of the prisoner was alleged to have occurred on the day of the commission of the offense, and its occurrence on that exact day was material as an important fact tending to establish the guilt of the accused, it was held, upon the separate trial of a co-indictee, in which such prisoner was introduced as a witness, that statements made by him before the alleged offense was committed, relating the circumstances and showing its occurrence on a prior day, were admissible, either as independent evidence, or as sustaining the evidence of the prisoner. 2. -alibi: case approved. The law relating to alibi as a defense in a criminal proceeding, as stated by Shaw, Ch. J., in the Webster-JParkman case, 3 Cush., approved.

Appeal from, Dubuque District Court. Criminal law — declarations of prisoner when evidence: alibi, &c. — The defendant above named, and one A. M. Conlding, were jointly indicted for larceny. The defendant, Cruise, was tried separately and convicted. From tbe evidence the following facts, material to the only question decided by the court, appear. On Tuesday, the 13th day of December, 1861, one Johnson had eleven head of cattle stolen from him, and it was for this theft that defendant and Conkling were indicted. Conkling resided near Johnson, and Cruise had, until a few days before, lived with or near Conkling, in the county, a few miles from Dubuque. During the same night on which the cattle were stolen, two men on horseback driving cattle were met by several persons on the road leading to Dubuque, but the accused were not then identified. About three o’clock on Wednesday morning a watchman at a mill in the suburbs of Dubuque, saw two men on horseback driving a lot of cattle corresponding to the number stolen from Johnson. The watchman recognized and identified Conkling as one of tbe men driving these cattle. The cattle were driven across the Mississippi on the ice, and the men in charge of them took breakfast a few miles out on the road to Galena. Persons who saw them at this time, and on the road, and at Galena where the cattle were disposed of, testify, with more or less positiveness, that Cruise and Conkling were the men who were in charge of and who sold the cattle at Galena. The sale was effected at the latter place on Wednesday, the 14th day of December, and the money received for the cattle during the afternoon of that day. Galena is distant from Dubuque about fifteen or eighteen miles. Further to identify the defendant and Conkling as the guilty parties, the State introduced as a witness one Cady, who testified in substance as follows: “I live at Catfish, Iowa, about 2|- miles from Dubuque, on Cascade road; I know Conkling, and have known him since October last; he came to my house on the night of the 14th day of December; it was ten (10) minutes to 12 o’clock; he told me there was a man dead in the road; I lighted a candle, dressed myself and we went out to where the man was lying in the road; I turned him over, recognized him, and Mr. Conkling and I brought him into my house; then we (witness, and Conkling) sat down by the stove; Conkling told me there was good sleighing on the other side of the river and poor sleighing here; the man we brought in was drunk; Conkling told me he came from Galena that night; he was on foot when he came to my door; when he was going to go off he went to two horses, one was a bay and one was saddled and one not; at no other time during last fall or winter was there a man brought into my house at night.” The evidence for the State tended strongly to show that the defendant and Conkling were the guilty parties. The defense was an alibi. Various witnesses were introduced by tbe defendant, who testified that on the 14th day of December, and at the time when, according to the theory of the State, the parties were at Gralena, the defendant was in fact at Dubuque. Without stating the testimony in detail, it suffices to say that if the witnesses introduced by the defendant were not mistaken as to the time, the defendant and Conkling are shown not to have been at Gralena on the day when the cattle were sold. The evidence of the State tended, as above stated, to connect Cruise and Conkling as the guilty parties, and that of the defendant tended to show that neither Cruise nor Conkling was guilty. Among the witnesses called by the appellant was his co-indictee, Conkling, who, inter alia, testified in substance as follows: “ I was at home on Tuesday, the 13th day of December.” [This is near to or adjoining Johnson’s, the owner of the stolen cattle.] “ Cruise was there the forepart of ■ that day. On that day we butchered a beef. Cruise took part of it to town in a two horse wagon, and came back about nine o’clock with the team. Cruise and I staid at home that night.” [The night the cattle were stolen.] “We both went into town on the 14th.” Witness then testified as to where they stopped when in Dubuque that day, and of other matters, and is then asked : “Do you know a man named Cady at Catfish?” “I may have seen him, but don’t know him; I know where he lives.” “Did you ever stop there and see a man taken into his house?” “Yes.” “When?” “It was some time before the 9th day of December. It was, I think, the 6th or 7th.” “State what took place?” “I was going out home and saw a man lying in the road, and thought he was dead. I could not get my horse past him. I went over to the house and got the man out and got the drunken man into the'house. I stayed a very short time. I don’t think I told him where I came from.” “ How do you know it was before the 9th that you met Cady?” “I know Cruise was in on the 9th, and I had told him. about taking in this man; he said there was no house there. When I moved Cruise in on the 9th, I showed him the house.” “ What did you do with your horse when you took the man in ?” “ I hitched him. 'I had but one horse there. It was about 9£ o’clock.” “ Did you tell anybody else about this frozen man?” Yes; I told it at Mr. Devoney’s. I told the two women there. I think it was >on the 9th. I don’t know how I came to tell them — how the conversation brought it about.” In this posture of the case the defendant then produced, as a witness, Mary Devoney, who testified “that she was acquainted with both prisoners, and that in the forepart of December, 1864, defendant, Conkling,' took dinner at her house.” The witness was then asked to state whether, at that time, Conkling had any conversation about taking up a drunken or frozen man on the road. An objection to this was sustained. “ The defendants,” so recites the bill of exceptions, “ then offered to prove by the said witness, that on the 9th day of December, 1864, defendant, Conk-ling, was at the house of the witness and took dinner there, and at that time related to her that he had, a few nights before, on going home, found a man on the road and supposed at first that he was dead, but found that he was drunk, and that he assisted in taking the man into the house of Edward Cady, at Catfish mill.” The State objected to this evidence; the court sustained the objection, and the defendant excepted. The defendant was convicted, and appeals.