
    State of Iowa, Appellee, v. A. J. Boyd, Appellant.
    1 WITNESSES: Cross-Examination — Conviction of Crime. It is not reversible error to permit tbe State to establish, on ‘ cross-examination of a witness, that he has been convicted of a specific crime.
    2 CRIMINAL LAW: Evidence — Weight and Sufficiency — Alibi. The court must not specifically single out testimony by members of 'the defendant’s family tending to establish an alibi for the defendant, and state to the jury that such testimony is easily manufactured.
    3 RECEIVING STOLEN GOODS: Innocent Possession and Pelonious Concealment. An instruction which, in effect, directs the jury to convict an accused even though his original possession of stolen property was innocent, if he later obtained knowledge that the property had been stolen and thereafter feloniously concealed it, is not erroneous because it failed to state that such knowledge must have come to the accused prior to the return of the indictment. <
    
      4 CRIMINAL LAW: Argument — Failure of Accused to Testify. Principle reaffirmed that the county attorney may, in argument and in a ease wherein the accused is not a witness, assert that certain testimony stands uneontradicted, even though the defendant is the only person who could make such contradiction.
    
      Appeal from Van Burén District Court. — Seneca Cornell, Judge.
    June 22, 1923.
    The defendant was indicted, tried, and convicted in the court below of the crime of receiving stolen property. From a judgment sentencing him to the penitentiary for a term of not to exceed five yeafs, he appeals.
    
    Reversed.
    
      Lloyd L. Duke, Hugh R. Sloan, and W. S. Allen, for appellant.
    
      Ben J. Gibson, Attorney-general, Neill Garrett, Assistant Attorney-general, and Ralph H. Munro, County Attorney, -for appellee.
   Stevens, J.

I. The defendant is the same as the defendant in State v. Boyd, 195 Iowa 1091. Many of the propositions relied upon for reversal in this case were decided adversely to the contention of appellant in the prior case, and as to all such propositions the decision is controlling. A witness who was present when the search was made of the premises of the defendant for stolen goods testified that he saw some rifles and guns standing by the door, and that there was a revolver lying on the counter. Just what relevancy or materiality the State claims for this testimony does not appear. The objection should have been sustained. It is, however, inconceivable that prejudice could have resulted from its admission. So far as is disclosed by the record, it was not referred to in. argument, or otherwise pressed upon the attention of the jury.

II. Appellant also complains because he was not permitted to prove a conversation between one Freshwater and the witness Hoskinson, the thief who stole and delivered the goods to the defendant, prior to the date on which the State claimed an arrangement was made between Hoskinson and appellant, by which the former agi’eed to steal merehaxxdise and sell it to the latter at his store in Faix-field. The conversation referred to, ixx effect, amounted to a proposition from Hoskinson to Freshwater to assist him in the crime of breaking and entexáng box cars, for the purpose of. stealing and selling merchandise, and requested the use of his automobile in carrying out the proposal. The evidence was clearly inadmissible, and the court correctly rxxled.

III. The court permitted counsel for the State to cx’ossexamine one of defendaxxt’s witnesses as to-a previous conviction of the crime of gambling. Counsel was permitted to pursue the inquiry somewhat further than is ordinarily permitted, but he elicited nothing further than the fact of the prior conviction. The ruling does not present a grouxxd for reversal.

IV. ' The defexxdant also offered evidence of an alibi. The witnesses examixxed in his behalf testified that the goods described in the indictmexxt and referred to in the evidence were purchased by appellaxxt’s wife, and received by ker ^rom Hoskinson during appellant’s absence, and under the belief on her part that Hoskinson was a traveling salesman, and without any knowledge whatever that the merchandise had beexx stolexx. The court gave the usual alibi instruction, with the exception of the following:

“Testimony tending to establish an alibi, being usually from members of the defendant’s family axxd easily manufactured, should be-closely scrutinized and carefully considered.”

The portion of the instruction criticized is that relating to the testimoxxy of defendant’s family. The wife of appellaxxt was a very material witness iix his defexxse, and her testimoxxy tended to show that appellaxxt was absexxt upoxx 'both occasioxxs when the merchandise was purchased, and also when it was received by her at the store. Her testimony was corroborated by that of other witnesses. The portion of the instruction criticized should not have been given. The defense of alibi, although easily manufactured, is, nevertheless, a legitimate one, and is, sometimes at least, supported by the testimony of witnesses of the highest character. The jury may have misunderstood the purpose and intention of the court in this instruction. The instruction tended to single out the testimony of appellant’s wife for particular scrutiny and to cast some suspicion upon it. Her testimony was' very material, and, if true, exonerated the appellant from participation in the purchase and immediate receipt from the thief of the stolen merchandise. The error was not cured by the further language of the instruction, which required the jury to carefully scrutinize and consider all of the testimony introduced to sustain this defense. "We cannot escape the conviction that the instruction was both erroneous and prejudicial.

V. The court also instructed the jury, in effect, that the defendant could not be convicted of receiving stolen property if it- was delivered to his wife, in his absence and without his knowledge, unless he retained it or secreted or assisted in secreting it in the store, after he learned that it had been stolen. The complaint of this instruction is that it does not tell the jury that such knowledge must have come to the appellant, and that the act of retaining and secreting the same must have been performed prior to the date the indictment was returned. The court gave the usual instruction, that the crime must have been committed prior to the finding of the indictment and within the period of the statute of limitations. Furthermore, the evidence of the State tended to show that, prior to - the receipt of the merchandise in question at appellant’s store, he entered into an arrangement with Hoskinson by which he agreed to purchase stolen merchandise from him and to provide a conveyance therefor from the point where it" was stolen to his store. The court might well have instructed the jury as suggested by appellant, but we are clear, from the record as a whole, that the omission was not prejudicial.

VI. Misconduct on the part of the county attorney in argument is also urged as a ground for reversal. The previous case was reversed upon this ground, and we confess that the language of the county attorney in this case does not merit approval. The defendant did not take the stand in his own behalf, and it is evident that the county attorney endeavored, without any direct reference thereto, to use that, fact in argument. We have held, however, that it is not reversible misconduct for the prosecutor-to call the attention of the jury to the record, and to state that the evidence as to any matter contained therein is uncontradicted. State v. Hasty, 121 Iowa 507; State v. Biewen, 169 Iowa 256. Also, he may state in argument that, in his opinion, the defendant is guilty. State v. Shultz, 177 Iowa 321; State v. Robinson, 170 Iowa 267.

The county attorney appears to have kept within the rule of the above cases.- We do not deem it necessary to set out the portions of the argument complained of, nor to discuss the matter at length. The other matters discussed by counsel for appellant were passed upon in the previous case, and, while it is suggested that the court may have misunderstood the contention of counsel as to some of these matters, we are satisfied with the ruling announced.

On account of the error pointed out in the instruction relating to the defense of. alibi, the, judgment of the court below must be and is — Reversed.

Weaver, Evans, Arthur, and Faville, JJ., concur.  