The Leon reporter. (Leon, Iowa) 1887-1930, 1913-07-17

|
triers of the fact, we would n
| found the defendant guilty
province is to ascertain Whe
not there was sufficient testim
| troduced, which if believed
jury, would justify a conviCtiol
! reason for this is that questid
| fact in all criminal cases are
jury, and, after a verdict OF
| found by twelve men, has bee
| turned and the trial judge ha
viewed the testimony and conti1
| the verdict, We are not, as an a
| late tribunal, justified in rever
| for want of testimony because
sooth in reviewing the evidence
presented by the cold printed pa
we would not have come to the san
conclusion. The usual test, as ] ul
derstand it, is this: Suppose the do
! PENDANT had rested without test
mony and chosen to submit his cas-
upon the evidence adduced by til
state; the inquiry then, in the ever
| of a verdict of guilty, would hay
been, WAS there enough to justit
the verdict" The same rule obtain
where the defendant offers ties Nv
| in his defense; for it is wit
province of the jury to say,
| not believe any of the TESTING
fered by the defendant, or
terial part of it. Again
court sits in review of t
proceedings, and the presia
has opportunities we do noy
not possess, and he, under
has definite function to pc
refusing to grant motion
| trial, he also puts his seal or
| al npOD the verdict and his
that the testimony is sufficient shoefe
| not be disregarded except in extreme
cases. This to my mind, is not such
a case.
| The testimony shows much more
than the mere presence of defendant
as acquiescent observer. He could
easily have retired to safe distance,
had he been so disposed. But he
did not do so; he remained on the,
scene, drew his revolver, tried to
prevent the Zornes' from arming
themselves with clubs. Told the
Zornes' that if they picked up rocks,
he would blow their brains out and !
afterwards gave Tom and Ed Ioungy
some wood. Not only this, but
when the Zornes started to retire, he,
with Ed. Roy and Tom Young, pur-
sued the Zornes, he, Hugh, being at
the time armed and carrying some
wood in another arm. Of course, he
did not know that Mrs. Zornes was
then being actually assaulted with
the intent to kill, but he was engag-
ed and participated in the unlawful
assault on the Zornes on their own
premises, and being engaged in this
general unlawful melee, it is imma-
terial that he did not give direct
countenance to everything that actu-
ally occurred. This proposition of
law is too fundamental to :, ruirs
citation of authorities in its SUI "
Mere presence at the place of difh,
ty is not aiding and abetting. But
one being present, encourages or il
cites, by words, gestures, looks o
signs or in any manner or by AM
means cOuntenances or approves a!
assault or other crime or is an active
participant in a general riot or as
sault he is an alder and abettor:
Hines Us. Strcebcl, IS Wis. ,7t.
S. C. IT n. w. Rep. $50.
State VS.. Talley, Is So. 1922.
Rhinehart VS.. Whitehead, "A N. w
Rep. 401.
State VS.. Jones. 115 Iowa 113.
Brown VS.. Perkins, SO Mass. SO.
S. G. l Allen SO.
Kinney VS.. butcher, 20 n. w. Rep.
S66.
State VS.. Cox, 65 Mo. 20.
State VS.. Walker, 9 S. w. Rep 646.
| In the latter case, it is said
Zone theory of the case on thu
part of the state was that defendan
did not himself shoot Green, but tina
one or more of seven named persons
did, and that defendant was present
aiding and abetting. Wharton, in
describing and defining an alder and
abettor, says: IF he watched for his(
companions in order to prevent sur |
prise, or remained at a convenient
distance in order to favor their
escape, if necessary, or was in such
a situation as to be able readily to
come to their assistance, the knoWl- |
edge Of which was calculated to give
additional confidence to his compan-
ions, in contemplation of law he was/
aiding and abetting.' l Wharf Grim
Law, 18th ed.) No. 211.
There was ample testimony, as
view it, to take the case to the jury
Moreover, it was for the jury to say
under all the facts and circumstances
disclosed by the record, what the
purpose Of the defendant and his
companions was in going to the
Zornes house. Very shortly after
they arrived there Mrs. Zornes was
accused of starting reports as against r
Clarence Teale Hugh Teale, the de-
PENDANT, was conveniently there as
witness to deny the correctness of
the report. Out of this grew the
difficulty. A jury may have found, in
the absence of other testimony, that
the parties all went to the Zornes
home to settle this matter of gossip.
Either that, or they went there to
get liquor or for some other doubtful
motive. They went practically to- \
gether, and in what followed, the de-
PENDANT, Hugh Teale, was not guilt
less, if the witnesses for the state
are to be believed. Whether or not
they were worthy of credence was
essentially for jury and would not
interfere with the verdict. l believe