
    State of Iowa v. Albert J. Thorp, Appellant.
    Practice: conflicting evidence. Where the evidence is conflicting as to the identity of the defendant and as to the alibi interposed as a defense, a verdict of guilty will not be disturbed.
    
      Appeal from Davis District Court. — Hon. W. I. Babb, Judge.
    Thursday, October 1, 1895.
    Albert J. Thorp was convicted of the crime of larceny, and ■appeals.
    
    Affirmed.
    
      Payne & Sowers for appellant.
    
      Milton Eemley, attorney general, Ellsworth Bominger, county attorney, and Jesse A. Miller, for the state. ■
   Kinne, J.

I. Defendant was charged with stealing a cow and calf from one Jane Smith, in Davis county, Iowa. It appears that some person, on the night of July 23, 1894, took a cow and calf from the inelosure of Jane 'Smith in Davis county, Iowa, and the nest forenoon the same animals were sold to one Birney, in Glenwood, Mo. The day after 'the cattle had been stolen, they were found in Birney’s possession. Defendant contends that he did not steal the animals; that the evidence was not such as to warrant the jury in finding him guilty; and that in fact he was in the town of Moulton, Iowa, at the time they must have been taken and sold, which place is over twenty miles distant from Glenwood, Mo. The state introduced several witnesses, who testified to seeing defendant in Glen-wood, Mo., the morning after the cattle had been stolen; that he was the identical person who sold the cattle to Birney; that they paid particular attention to the appearance of the man who sold the cattle, noticed the shape of his head, the cut of his hair, and his features. Birney, who purchased the cattle, is positive that defendant is the man he bought of. He would not pay him, until he had been 'identified, 'and arrangements were made at the bank at Glen-wood to pay for the cattle upon proper assurance from the. Moulton, Iowa, bank, that the seller, Rom'inger, as he called himself, was all right. Jones, the cashier of the Glenwood, Mo., bank, distinctly remembers the defendant as the man who sold the cattle to Birney. He noticed him particularly, and some time thereafter, without aid, selected the defendant from among a number of men as the one who sold the cattle. Birney, within three days after he had purchased the cattle, readily identified the defendant as the man he had purchased of. Other witnesses positively ’identified the defendant as the man who had sold the cattle to Glenwood, Mo. Still others testified to seeing him with the cattle on the road, going toward Glen-wood, early in the morning of the day on which they were sold. One of these men had known the defendant for years. Two other witnesses saw the defendant early in the -afternoon of the day on which the cattle were sol'd on the road leading from Glenwood. One of these witnesses.knew the defendant well, and conversed with him. Defendant introduced a large number of witnesses -to show that lie was, to fact, in Moulton, Iowa, on the afternoon and night of the twenty-fourth of July, 1894, and a part of the folio-wing day. Beardsley thinks he saw defendant in Moulton, Iowa, on the forenoon of July 24, 1894. Mrs. Beard says she saw him that morning -at his father’s place in Moulton. Andrew Beard testifies he saw defendant in his shop in Moulton -between 3 and 4 o’clock of the afternoon of the twenty-fourth of July. Henden says he met defendant on the road, a mile from Moulton, while he (-the witness)' was hauling a load of wood. There is nothing inconsistent in 'the-fact, if it toe such, that defendant was seen in Moulton on the afternoon of July 24, 1894, and the fact that he was in Glenwood, Mo., early in the morning of the same day. As to Henden, it appears from other evidence that he is mistaken as to dates; that it was the twenty-sixth, instead of the twenty-fourth day of July, when he saw the defendant on -the road. Swartz does not say he saw defendant the morning of the twenty-fourth,- but he does say he saw him one morning early in the week. Garrett admits he may be mistaken as to the time defendant was in his office. Defendant’s wife did not see him from Monday, July 23, to Wednesday evening, the twenty-fifth. A. B. Thorp, a brother of the defendant, says he had defendant’s gray horse on the morning of the twenty-fourth, 'to ride to the stock pens in Moulton, but he is contradicted by two witnesses, who testify that the witness said in their presence that he had to walk to the stock pens that morning. Defendant’s sister swears he was to Monlton all night the twenty-third, and at 7 o’clock on.the morning of the twenty-fourth, but admits that she did not see him after he went to bed on Tuesday night, and that he was gone when she got up. The -defendant, his father, mother, and sister, claim that he stayed all night of the twenty-third at the father’s house in Moulton. It is not disputed that Mr. and Mrs. Downing stayed there at the same house the night of the twenty-third of July, -and they were not aware of the fact that defendant was there, and did not see or hear him. Some other witnesses testify to having seen defendant in Moulton on the mornin-g of July 24, 1894. Defendant, as a witness, undertook to account for his whereabouts on the forenoon of the twenty-fourth. His testimony in that respect was far from being satisfactory. In fact, evidence was introduced which, if it is to he believed, shows that defendant was not at the place he claims on that forenoon. There are many other facts which very much ■weaken, if, indeed, they do not entirely destroy, rne force of the testimony of defendant, his father, mother, and sister as to his being at the father’s house on the night of the twenty-third of July, 1894. It would not be profitable to enter into a discussion of the law relating to identity and alibi. ' Under the instructions given we think the jury was fully justified in finding the defendant guilty. It is a case peculiarly within the province of a jury, and a case where much of the weight to be given to the evidence must be determined from the conduct and manner of the witnesses on the stand, their relationship to the defendant, and other similar facts. — Affirmed.  