State v. Cruise

19 Iowa 312

• Court: Supreme Court of Iowa
• Decided: October 16, 1865
• Status: Published

Opinion

Dillon, J.

criminal Nations ofpnson According to the State’s theory, Cruise and Conkling jointly stole the cattle on the night of the 13th of December, sold them in Galena on the afternoon of the 14th, and Conkling, with the two wag returning from Galena home via Catfish, on the night of the 14th, at the time he met the man he supposed to be dead, but who turned out to be drunken, in the road near Cady’s. The testimony of Cady identifying Conkling as being at his house at midnight on the 14th, and leaving with' two horses, was material, and of a most damaging character to the defendant. It harmonized with, and fortified the other evidence relied on by the prosecution, and tended very strongly, in connection with the other evidence, to point out Conkling and Cruise as the guilty parties. Its significance and its value depend entirely upon the time, the exact day, on which the circumstance deposed to by Cady took place. If it took place on the 6th or 7th, or at any other time than the night of the 14th, its inculpatory force, as against the defendant, would be entirely destroyed. Conkling, who was a witness in behalf of his co-indictee, testified that the circumstance relating to the drunken man took place as stated by Cady, but claimed that it occurred a week before. The time when the circumstance happened was therefore in dispute, and it was a dispute of a material character. It follows, that any evidence tending to show that the circumstance testified to by Cady, happened at the time stated by him, would be admissible to corroborate him. On the other hand, any evidence tending to show that it happened at the time stated by Conkling, would be admissible to corroborate him.

The case before us is peculiar in its character, and, under its special circumstances, we are of opinion that the facts' offered to be shown by the witness, Mary Devoney (see statement), were competent evidence, and that the court erred in rejecting the testimony.

In thus holding the evidence admissible, we recognize the general rule that the law will not permit an offender to manufacture evidence in his own favor, and will not therefore allow him to introduce his own declarations when not part of the res gestee. Thus, on an indictment against a prisoner for having counterfeit tools in his possession with intent to use them, he cannot give in evidence his declaration to an artificer at the time he employed him to make such instruments as to the purposes for which he wished them to be made. Commonwealth v. Kent, 6 Metc. 221; other illustrations, Whart. Cr. Law, 240, 259; Shuck v. Vandewenter, 4 G. Greene, 264.

But the present is not such a case. If Conkling, on the 9th day of December, did tell the witness, Mary Devoney, the circumstances of taking the drunken man into-Cady’s, this at once shows Cady to be mistaken when he fixes the time to have been the 14th, and corroborates Conkling’s evidence fixing the time to have been the week previous. The days of miracles and of prophetic insight into the future have passed. Conkling, as early as the 9th, might have conceived the idea of stealing the cattle of his neighbor, Johnson, and have fixed on the night of the 18th to execute the illegal enterprise; but he could not have foreseen that on his return, on the night of the 14th, he would liave met a man in the road near Cady’s, and hence could not by any possibility have manufactured evidence of this character to be thereafter used by him for his own benefit.

The counsel for the appellant maintained the admissibility of this testimony, mainly on the general ground that Conkling was impeached by virtue of his relation to the cause, and that the party offering his evidence had the right to support it by showing that he had, on other occasions, made statements similar to those to which he testified on. the trial. The general rule is otherwise, and is well stated by Mr. Phillipps (2 Ev., 444, 446), and, with characteristic condensation and clearness, by Mr, Greenleaf (1 Ev., § 469). The case at bar would seem, to fall within the exception to the general rule as there stated, if that exception is to be' regarded as established law.

2. . provecí! But, in our opinion, the rejected testimony was proper, both as independent evidence on the question as to the precise day of the month it was that the drunken man was taken into Cady’s, and as evidence tending to support Conlding’s testimony. We have before had occasion to say, that whether a given item of testimony is proper, depends upon the exact attitude of the case (16 Iowa, 85), of which observation the more recent case of the State of Iowa v. Knight, ante, and the present are interesting illustrations. In support of the conclusion reached by us, see Commonwealth v. Wilson, 1 Gray, 337; Id., 103; Cow. & Hill’s Notes, pt. 2, p. 763, 765, ch. 9, note 390; Cook v. Curtis, 6 Harr. & J., 93, 94; People v. Vane, 12 Wend., 78; Pagina v. Abraham, 61 Eng. C. L. Rep., 550; Henderson v. Jones, 10 Serg. & R., 322; State v. De Wolf 8 Conn., 93; 2 Hawkes, 183, 449. It becomes unnecessary to notice the other questions made, for the judgment must be reversed, because of the rejection of the testimony above noticed. We only observe, respecting the proof where the defense is an alibi, that the law is well stated, and, for most practical purposes, perhaps fully stated by Shaw, Ch. J., in the celebrated Webster-Parkman case, reported 5 Cush., 295. See State v. Collins, post. Judgment reversed and trial de novo awarded.

Reversed.