State v. Cristy

Ladd, J. Appellant, without moving to strike, requests the court to disregard the state’s amendment to the abstract, and we shall comply with this request save as the abstract, which in many respects is misleading and untrue, is shown by the transcript to be correct. The amendment may be somewhat defective in .form, but, as counsel for appellant in the preparation of their argument have proceeded as though unaware of the existence of this court’s rules prescribing the method to be followed, it would seem that honors are about even, and that the appeal should be considered on the record as presented. Had the particular errors of which complaint is made and the precise points relied on for reversal been specifically stated, as directed in the rules, this court would not only have had the benefit of counsel’s analysis of the record and of argument concentrated on each of the alleged errors, but would have avoided the necessity of making a search to ascertain rulings of which appellant complains. The rules for the preparation of briefs were adopted after extensive inquiry concerning the practice of other courts of last resort and in the light of long experience, and have been found not only to promote their thorough preparation; but perspicuously to challenge attention to the very rulings to which exception is taken anld greatly to facilitate the labors of the court. [516] 1. Criminal law: burglary: evidence. [515] I. The offense charged is that while one Wright, a station agent of the Ft. Dodge, Des Moines- & Southern [516] Huxley, was gone to supper, defendant enBailway at tered the office and took from a desk therein money in dimes and nickles amounting to about $15 with intent to commit larceny. The sufficiency of the evidence to sustain a verdict is challenged. It appears that Wright left his office at about 5 :45 o’clock p. m. on May 11, 1910. The doors were then locked and the windows fastened, but, upon his return, about fifty minutes later, he discovered that the door from the office into the waiting room, though closed, was unlocked and, upon entering the office, noticed marks indicating that the money drawer or till had been tampered' with. The lock had been pried open and bent in some way so that the key would not unlock it. Upon lifting the till out, he discovered that $15.20 had been removed therefrom. This consisted of fifty dimes rolled up in paper and $6 in nickels put up twenty in a roll and some loose change of like denominations. Shortly after the agent had left the station, the defendant was seen by three persons in that vicinity to pick up^ a copy of the Des Moines Daily Capital, which had been lying on the ground nearby for some time, and one witness testified to having seen him go toward the door to the waiting room, but, as this was on the side of the depot opposite the witness, he could not tell whether he entered, but, after a short time, he saw him come around the building and go to a nearby outhouse. The newspaper was identified by several witnesses by an illustration or picture appearing thereon. Upon the return of the agent it was found on a bench near the ticket window inside -the ticket office. Defendant was shown to have inquired of several persons as to when the next Interurban train (over the road mentioned) would go south, and was informed that the scheduled time was 5:40 o’clock p. m., but that the train had not gone, and one of the witnesses undertook to find out when it would go, but defendant left while he was inquir [517] ing. Instead of waiting for the train, defendant started down the Interurban track southwest and, after proceeding ■about a mile and a half, employed a farmer to hitch up his team and take him to the town of Slater about six miles distant, and upon his arrival at Slater paid him $1 .for his services in dime's and nickels. The marshal of this place, upon request by telephone of officers at Huxley, •arrested defendant near the Chicago, .Milwaukee & St. Paul Railroad and took him to the mayor’s office in a store there to await the arrival of such officers. He sat down for about an half hour, when a piano agent called attention to the fact that he had not been searched. After some parley, according to the mayor’s story, he “stepped up to him and took him by the hand and said, ‘We ■ have got to search you.’ Thereupon the defendant “tried to get around to his pocket,” whereupon a bystander took hold of the other hand, and the defendant “kind of tried to fight” and “kind of got his hand around some. way and got his gum out.” Thereupon the piano agent came in front of him with a gun and told him to “give up that gun” which he then had “right in front of him” and the agent “jerked the gun out of his hand” and gave it to the mayor, and “kind of a tussle and kind of a fight” followed; but the defendant was finally laid on the floor, but, upon the suggestion of the mayor, was carried to the front of the store and set in a chair.. Previous to this, two razors had been taken frio-m his pockets, and when he was in the chair his shoes were taken off and a lot of dimes and nickels found in his. stockings. The city marshal testified that the defendant when arrested made no objection to coming with him and gave an account substantially like that of the mayor, except that, according to his version, when searched the defendant said, if any one searched bim, to let the marshal do so. On the following day, the sheriff took him to the county jail, where, on being searched, $2.50 in silver and $14.20 in nickels and [518] dimes were found in his different pockets and stockings, and some ‘junk jewelry and a large number of pearls. Nearly every pocket contained some small change. He had no other money on his person. While in the jail he occupied a cell with a cement floor, and, as the wife of the sheriff heard tappings in the cell, the sheriff investigated and found the defendant lying on the floor with a pillow over a diagonal hole through the floor, about twelve inches each way and six or eight inches deep; but this was about six feet from the outside wall. The sheriff had found morphine and cocaine on his person, and it appeara he had taken some of this in the morning. By way of defense, it was shown that defendant was traveling about the country purchasing cast-off jewelry, wthioh he either had made over, or, if gold, melted and then sold, and, at about 4 o’clock in the afternoon prior to his arrest had purchased two pearls of one Rubar at Cambridge, about four miles east of Huxley, and had paid $4 therefor. This he took from a chamois skin purse. In the course of their conversation, he emptied this purse in his hand in order to find old coins he was exhibiting to Rubar. According to the latter, this consisted simply of a “few dollars and quarters, and so on,” all of small denomination. He carried this chamois skin purse, which was about two-thirds full, mostly of small coin, next to his body fastened to his trousers by a safety pin. It also appeared that one Beebe in part payment for a horse had paid him at Des Moines $10 or $15 in dimes and small coins about the last of April. He had boarded with Mrs. Wagner in Des Moines, and she testified that she had made the purse for him, and that when he left her place about three days before his arreat he had this filled with some bills, silver, and $10 or $12 in nickels and dimes. This testimony is corroborated by that of her husband, but neither .seem to have been certain as to the amount in small change. Such is the evidence on which the jury [519] based its verdict, and we are of opinion that it was sufficient to sustain the finding. The circumstance that the newspaper picked up by the defendant was found in the office upon the return of the agent, that, after careful inquiry when the train would leave, he walked a mile and a half and then employed a farmer to take him to the town of Slater, which was not on the Interurban road, that the money in nickels and dimes found on his person and that paid to the farmer exactly equaled the amount in nickels and dimes taken from the fill at Huxley, that when searched no money was found in the purse to which Kubar referred, that he resisted the search of his person' and undertook to draw a revolver when this was being done, and further that he was discovered digging through the county jail, all this so directly points to the accused as the perpetrator of the offense that this court should not interfere with the verdict returned by the jury. 2. Same: evidence: erroneous admission: prejudice. II. The sheriff was allowed over objection to state that one of the locks in the jail had been interfered with so that it had to be taken off; but, upon failure to connect defendant therewith, the evidence was stricken out This obviated any prejudice to the defendant. c 3. oame: separation of witnesses. The state, after resting, requested that the witnesses for defendant be separated, and it is said that the order was erroneous, in that it should have been made at the-commencement of the trial. The matter was entirely within the discretion of the trial court, and there is no indication that this was abused, or that any prejudice resulted from his order. There is nothing in the contention that the instructions indicated the court’s opinion of the issue being tried. Complaint is made that appellant was not allowed to show for what purpose he carried the razors found on his person. Though the record discloses that counsel suggested to the court that it seemed to him fair that such [520] purpose should be shown, no question was propounded calling for such testimony. Nor was there any ruling on the suggestion upon which to predicate error. No exception to the fifteenth instruction was saved, and for this reason the criticism thereof can not be considered. — Affirmed.