State v. Norman

McClain, J.

1. Jurors disqualification The defendant challenged a juror on the ground that he was incompetent under Code, section 332, because not in full possession of the sense of seeing; but the only showing in the record is that the juror had a little defect in one eye. As it does not appear that this defect was such as to deprive him in any degree of his sight, in the usual sense of the term, we think the court was fully justified in overruling the objection.

2. Juror: challenges. II. One who was drawn as a juror was challenged by the State on the ground that he had formed and expressed an opinion, which would disqualify him from serving under the provisions of Code, section 3560. After an examination of the juror as to his qualification in this respect, the court sustained the challenge, and of this the defendant complains. But the rulings of the court -as to the grounds of challenge will not be interfered with, unless there is an abuse of the discretion with which it is vested, and, on reading the record, we are satisfied that the ruling of the court was correct. Moreover, defendant *485 cannot complain of the exclusion of a juror by the court, unless some prejudice is made to appear; and there is nothing in the record to suggest that the defendant was unable to secure a fair and impartial trial by reason of the exclusion of the challenged juror from the jury box.

3 Evidence-foot prints. III. Witnesses testified as to tracks which were found on the morning following the commission of the crime near the place where it was committed, and to finding corresponding tracks in front of the premises of a neighbor, and it is contended that this evidence was erroneously admitted. But the evidence for the State, of which that above referred to was á part, tended to connect the defendant with the crime charged by tracing him, by means of the tracks of a spring wagon, from the place where the crime was committed to the defendant’s residence, and by identifying the footprints left near the place of the commission of the crime with those of the defendant and another person who was seen with him in a spring wagon during the night along a road which led from the place of the crime to the defendant’s residence. The evidence was therefore clearly competent, and its weight was for the jury.

4. Evidence-wagon tracks: A similar conclusion must be reached with reference to the evidence objected to by the defendant that the road along which the spring wagon was traced from the place of the crime to the defendant’s residence was no£ £he usual traveled highway, but a by-road, which was not likely to be used in driving from one place to the other. If the defendant had taken an unusual route to reach his destination, that fact would have some bearing on the question whether he was engaged in a legitimate enterprise at the time, or was, on the other hand, attempting to avoid observation, or otherwise carry out the general plan involved in committing the crime charged.

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5 Evidence-impeachment.

*485 IY. Complaint is made that witnesses called by the State to impeach the reputation for truth, and veracity *486 of one of defendant’s witnesses were allowed to speak witli reference to his reputation in the community , jn yyhigh he lived nine months prior to the trial; but, as his residence in the meantime was not far removed from the place where he resided nine months before, we are unable to see that there was 'any error. The whole matter was largely within the discretion of the trial court, and there is nothing to indicate that the witness had any different reputation in the locality of his more recent residence than that which he had enjoyed where he formerly resided. There is no arbitrary rule fixing the limits as to time and locality within which the general reputation of a witness may be inquired about for the purposes of impeachment, and we are satisfied that the court did not abuse its discretion in admitting the testimony in question. McGuire v. Kennefick, 111 Iowa, 147 ; State v. Prins, 117 Iowa, 505 ; Douglass v. Agne, 125 Iowa, 67 .

6. Larceny of domestic fowls: evidence. V. As the crime with which the defendant was charged was that of larceny of domestic fowls from inclosed premises, it was necessary for the State to prove that the place .from which they were taken was within the inclosed premises of the person named. The evidence tended to show that the fowls were taken from a coop in a wagon standing within an inclosed barnyard. The premises were therefore inclosed within the meaning of the statute. But it is objected that the premises were described as those of one L. C. McKern, but were proven to belong to his brother, George McKern, and to be a part of the farm of the latter. It appears, however, that L. O. McKern resided with his brother and had the right to use the barn and yard for his own purposes, and that the chickens belonged to him. The premises were therefore the inclosed premises of L. C. McKern, and the evidence sustained th.e allegations. In such cases proof of occupancy is sufficient. State v. Watson, 102 Iowa, 651 ; State v. Semotan, 85 Iowa, 57 ; State v. Rivers, 68 Iowa, 611 .

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7. Same: former acquittal. YJ. On cross-examination by defendant of a witness for the State who testified to finding some tracks in front of neighboring premises which had been made on the same night when the crime was committed on the premises of McKern, it appeared that domestic fowls had also been stolen from such neighboring premises. Thereupon the defendant interposed a plea of a former acquittal, and offered to prove that the defendant had been acquitted of the crime of stealing such fowls from such neighboring premises. The court refused to receive the offered evidence and submit the plea of former acquittal to the jury, and of this the defendant complains. We would hardly be justified in citing authorities in support of the proposition that an acquittal of larceny of fowls from the premises of A. would not bar a subsequent prosecution for the larceny of different fowls from the premises of B., and no other question is raised by appellant’s contention. The discussion of former acquittal as a bar in the case of State v. Price, 127 Iowa, 301 , furnishes all the answer that is necessary to appellant’s claim. .

8. Misconduct in argument VII. Considerable extracts are printed from the arguments to the jury made by counsel for the State in the trial court, and it is contended that such misconduct on their part is shown as to require a reversal. We find nothing in these arguments likely to be prejudicial to the defendant before the jury or outside of the bounds which are regarded as circumscribing the legitimate province of an attorney for the State in a criminal case. One of the chief objections made is that counsel asserted before the jury that “ defendant stole those chickens.” It does not appear that counsel intended to speak from his own knowledge or from any other information than that derived from the evidence to which the jurors had listened. However unnecessary it might have been for counsel to announce to the jury his own individual views as *488 to tlie defendant’s guilt, no prejudice could have resulted to the defendant from his doing so.

9. New trial: discretion. The exercise of discretion by the trial court in refusing a new trial on the ground of prejudicial misconduct of counsel in the court’s presence will be interfered with on appeal only where an abuse of discretion is clearly made to appear. State v. Waterbury, 133 Iowa, 135 ; In re Wharton's Will, 132 Iowa, 714 ; Brusseau v. Lower Brick Co., 133 Iowa, 245 .

No error appears in the record, and the judgment is affirmed.