State v. Bading

• Citation: 17 N.W.2d 804,236 Iowa 468
• Decision Date: 06 March 1945
• Docket Number: 46545.
• Parties: STATE v. BADING.
• Court: United States State Supreme Court of Iowa

17 N.W.2d 804

236 Iowa 468

STATE v. BADING.

No. 46545.

Supreme Court of Iowa

March 6, 1945

[Copyrighted Material Omitted]

Geo C. Claassen, of Cedar Rapids, for appellant.

John M. Rankin, Atty. Gen., Wm. F. McFarlin, Asst. Atty. Gen., and Carl Hendrickson and Dave Elderkin, both of Cedar Rapids, for appellee.

HALE, Chief Justice.

The defendant, John Bading, is a farmer living in the northern part of Linn County, owning and operating a farm upon which he kept a large amount of stock consisting of hogs and cattle. These were mainly purchased from other parties and fed on his farm. There were three separate sales of the hogs which it is claimed by the state were received by him unlawfully under the provisions of Section 13042, Code of Iowa 1939. William Preston, from whom Bading purchased some of the hogs, is about thirty years old and had been a resident of Missouri up to 1943 when he came to Iowa and went to work for E. O. Fisher & Son. Fred Everly and Jess Everly were brothers who had farmed to some extent and lived in a locality known as Sodtown about four miles west of the Bading farm. Jess had been a convict. The first sale took place on the night of June 17, 1943, when the two Everlys and Preston came to Bading's farm and awakened him and offered to sell him some pigs weighing about thirty to thirty-five pounds. After some deliberation they agreed on a price of $8 per head and the transaction appears to have been between Bading and Fred Everly. The hogs were delivered shortly after midnight. Upon June 22, 1943 another sale was made to Bading by Jess Everly of some small pigs which Jess claimed to own, for $8.40 apiece, and Bading paid for them by check for $70 and some cash. On June 30, 1943, the third purchase was made from Preston, who was accompanied by Jess Everly. Preston told Bading that he had twenty-five pigs of his own and would sell them for a good price. Bading purchased the pigs for $105. It is not shown by the state that the prices paid varied much from the ordinary current price of such stock in that neighborhood; but there was evidence that the pigs were delivered during the night and from an ordinary pleasure car. A part of the testimony of the three thieves is that they fully apprised Bading prior to the sales that they would have some pigs for sale but they would be stolen and they would bring them to the Bading farm. The farm from which the hogs were stolen was known as the Butler Farm belonging to the heirs of the C. F. Butler Estate, and was operated by E. O. Fisher & Son. Defendant was indicted for the purchase from Preston and a verdict of guilty rendered and sentence given thereunder. We have only outlined the general charge and facts relating to the alleged crime. The evidence of the state was sufficient to authorize submission to the jury.

The errors assigned by appellant attack the indictment and allege passion and prejudice of the jury, improper and prejudicial conduct of the county attorney, errors in instructions, the rejection of evidence and admission of incompetent evidence offered by the state.

I. A large part of appellant's argument is devoted to assailing the indictment and alleges variance between the allegations in the indictment and the proof. The errors assigned under this division are: That there was a fatal variance between the charge in the indictment that the pigs were either owned by a farm or by C. F. Butler Estate, and the proof produced showing that the pigs belonged to E. O. Fisher & Son that the pigs could not be stolen either from a farm or from the C. F. Butler Estate because neither is an entity which is capable of owning property, and that one of the essential elements of proof in a criminal charge of receiving stolen property is that it must be shown that the property was in fact stolen from the owner named in the charge and that it was stolen from an entity which can own property. The brief points in support of these claimed errors are (1) that the ownership element must be alleged, and (2) that a motion in arrest of judgment must be granted for any cause which has been ground for demurrer.

The criticism of the indictment in argument emphasizes the necessity of care in the formulation and presentation of criminal charges. While our modern short form statute as to indictments is a decided improvement, and in the interest of justice, and has done away with the old system of rules which sometimes permitted the escape of criminals through mere technicalities; yet the essential elements of criminal pleading have not been abandoned and are still retained in the present statute. But we do not think that the indictment here fails to charge sufficiently the essential elements of the crime.

We have noted the assignments of error by appellant. In the motion for directed verdict there was a charge of variance and in the motion in arrest of judgment it was alleged the indictment was defective. But a motion in arrest of judgment must be granted upon the whole record only in the event the court finds no legal judgment can be pronounced. Section 13946, Code of Iowa 1939. We think, therefore, that the variance cannot properly be raised by a motion in arrest of judgment. For the purposes of such motion the evidence is not a part of the record. State v. Young, 153 Iowa 4, 132 N.W. 813, 815, Ann.Cas.1913E, 70 and cases cited.

There are other reasons which we think controlling.

The principal object in an indictment is to apprise defendant of the crime charged. We are satisfied that appellant here could have had no doubt from the allegations of the indictment just what it was he was to answer for in court, and feel certain that the able attorney who represented him was in no way misled by such allegations. The record does not disclose that any objection was made before plea, and we have held that the sufficiency of the specifications in an indictment must be raised before the jury is sworn and is not open to question upon objections to evidence, exceptions to instructions or motion in arrest of judgment. See State v. Phillips, 212 Iowa 1332, 236 N.W. 104, and cases cited therein.

Motion in arrest of judgment is defined in Section 13946 as an application to the court that no judgment be rendered on a verdict against defendant or on a plea of guilty thereto and shall be granted when upon the whole record no legal judgment can be pronounced. It formerly contained the provision that the motion might be filed upon any ground which would have been a ground of demurrer--Section 5426, Code of 1897. But by amendment and change this provision has disappeared from the statute. 'So that now, practically, the courts hold that the motion cannot be sustained upon the grounds which would be grounds for demurrer.' State v. Kirkpatrick, 220 Iowa 974, 976, 263 N.W. 52, 53, citing State v. Frey, 206 Iowa 981, 221 N.W. 445.

Code, Section 13790, provides that defendant may demur to the indictment when it appears upon its face, either that it does not substantially conform to the requirements of the code, or that the indictment contains matter which, if true, would constitute a legal defense or bar to the prosecution.

And in Section 13791 of the Code, it is said: 'All objections to the indictment relating to matters of substance and form which might be raised by demurrer shall be deemed waived if not so raised by the defendant before the jury is sworn on the trial of the case.'

We must hold that the objection to the indictment was not made in time.

But even if so made, we are not convinced that the indictment is erroneous. Section 13732.02 prescribes what the contents of the indictment shall be and provides the offense may be charged in one or more of the following ways:

'1. By using the name given to the offense by statute.

'2. By stating so much of the definition of the offense, either in terms of the common law or of the statute defining the offense, or in terms of substantially the same meaning, as is sufficient to give the court and the accused notice of what offense is intended to be charged.

'The indictment may refer to a section or subsection of any statute creating the crime charged therein, and in determining the validity or sufficiency of such indictment regard shall be had to such reference.'

There is a reference in the indictment to '(13,042)' but it is not stated as a section of the Code.

Section 13732.11 is in regard to ownership and states:

'1. An indictment need contain no allegation of the ownership of any property, unless such allegation is necessary to charge the offense under section 13732.02.

'2. An allegation in an indictment or bill of particulars of ownership of property is supported by proof of possession or right of possession of such property, and any statement in an indictment or bill of particulars which implies possession or right of possession is a sufficient allegation of ownership.'

While a form of indictment is given under Section 13732.33 which sets out ownership, yet these forms are noted only as permissible forms and may be used in cases where they are applicable. See State v. Henderson, 215 Iowa 276, 243 N.W. 289, and cases cited; State v. Stanley, 48 Iowa 221; State v. Archibald, 208 Iowa 1139, 226 N.W. 186; State v. Moe, 195 Iowa 270, 191 N.W. 858. The reason for alleging ownership in the indictment is to negative ownership in the accused. State v. Congrove, 109 Iowa 1334, 1335, 271 State v. Philpott, 222 Iowa 1334, 1335, 271 N.W. 617, 621. In the latter case, after stating that the Code provided that an allegation of ownership in an indictment is supported by right of possession, and citing authorities, the court says:

'The defendant urges that the indictment did not identify the Grove Township School District as a...