State v. Hayward

Sherwin, C. J.

1. ~ <?frevSue:Piñ-f structions. I. The indictment charged the larceny of a box of shoes of the value of $35. The undisputed evidence showed that there were at least twenty-four pairs of shoes in the box, and that they were of the value of $1.50 per pair. In a general instruction, |jie jul,y was ^0ld that to convict of the crime charged the state must prove .the value of the shoes, and in another instruction it was said, in effect, that such value must be proven beyond a reasonable doubt. All of the evidence on the subject of value placed it at more than $30; and hence there was no occasion to instruct that if there was any reasonable doubt as to its value it must be fixed at $20, or less. State v. Burton, 103 Iowa, 28 .

2. same- circumdínc¿finstructlon‘ II. It is contended that the conviction depended upon circumstantial evidence, and that the court erred in not instructing thereon. No request of this kind was made, and n0 instruction of the kind was necessary under the evidence. It was shown by the state that the defendant was at the place of the stealing shortly before the property was taken, and that the property was found in his possession a short time thereafter. There were only two circumstances before the jury tending to show the defendant’s guilt; one was his presence at the scene of the theft, and the other was his possession of the stolen property. The court fully instructed on the effect of the latter circumstance, and we think that was sufficient.

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3. Same: recent possession: instruction.

*267 III. It is urged that the court instructed that the possession of recently stolen property east the burden on the defendant of showing that he acquired it honestly; but the counsel has evidently failed to carefully read the instruction complained of. The jury was told therein that, where *268 the possession of recently stolen property is unexplained, the presumption arises that the person in possession thereof is the person who committed the theft, and, in the absence of any explanation, the fact of such possession is sufficient to warrant a conviction, “unless the evidence and circumstances disclosing such possession and the nature of it are such as to leave in the mind a reasonable doubt whether such person may not have come honestly into the possession of such property.” The rule announced in the instructions is clearly right, and has frequently had our approval. State v. Kimes, 145 Iowa, 346 ; State v. Brundige, 118 Iowa, 92 ; State v. Peterson, 67 Iowa, 564 ; State v. Hopkins, 65 Iowa, 240 ; State v. Richart, 57 Iowa, 245 .

4 same- presumption of innocence: instruction. IV. Error is predicated on the failure of the court to instruct, without a request therefor, that the law presumes every man innocent until he is proven guilty. While such an- induction would have been proper, it was not necessary. The court instructed that every material element of the crime charged must be proven beyond a reasonable doubt, and this, in itself, presupposes the innocence of the accused. In addition to this, jurors of ordinary intelligence understand that in law every man is presumed to be innocent until proven guilty beyond a reasonable doubt.

5‘ duct iiTárgu” V. Complaint is made of statements of the county attorney in his argument to the jury, but we find nothing therein of a prejudicial nature, in view of the statements of the court to the jury. If an attorney misstates the record to the jury, particularly where the evidence is as limited as it was here, the jury will know it as soon as any one, and neither the attorney nor his cause will profit thereby.

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6. Same: continuanee: absent witnesses: diligence: evidence.

*268 VI. The defendant was indicted on the 17th day of January, and pleaded not guilty on the 19th day of January, and on the 10th day of February the court assigned the case *269 for trial on the 14th clay of February. On the 13th day of February, the defendant asked a continuance, _ ... .. .... because of his alleged inability to procure cer- # ° ° x tain witnesses. The motion was overruled, and . the ruling is said to be reversible error. In his own affidavit in support of his motion for a continuance, the defendant stated that he had been in custody on this charge since the 28th day of November, 1910, over a month and a half before the finding of the indictment, and that two men, one of whom was with him when he was arrested on the charge, and both residents of Omaha, Neb., were material witnesses for him. lie made no statement, that he had attempted to procure their testimony. Ilis attorney also made an affidavit as to the materiality of the testimony of these witnesses, and stated further that he had been the defendant’s attorney since December 1, 1910, .and had been unable to locate the witnesses since the case was set for trial on the 10th day of February. Both counsel and the defendant stated that they did not know the name of the express driver in whose conveyance and presence the defendant was arrested on the 28th day of November. Clearly there was no showing of diligence, and the court rightly overruled the application for a continuance.

VII. We think the evidence sufficient to sustain the verdict, and the judgment is therefore affirmed.