State v. Banoch
| Decision Date | 07 February 1922 |
| Docket Number | No. 34297.,34297. |
| Citation | 193 Iowa 851,186 N.W. 436 |
| Parties | STATE v. BANOCH. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Clarke County; Homer A. Fuller, Judge.
Trial on indictment for the crime of larceny from a building in the nighttime. Verdict of guilty, and defendant was sentenced to the state reformatory for an indeterminate term, not to exceed five years. Defendant appeals. Affirmed.A. M. Miller and O. M. Slaymaker, both of Osceola, for appellant.
Ben J. Gibson, Atty. Gen., and John Fletcher, Asst. Atty. Gen., and J. B. Dyer, Co. Atty., of Osceola, for the State.
DE GRAFF, J.
Defendant was indicted May 31, 1921, by the grand jury of Clarke county, Iowa, for the crime of larceny from a building in the nighttime, committed on the 26th day of May, 1921. Upon a plea of not guilty trial to a jury was had, resulting in a verdict of guilty.
Three errors are assigned and argued by appellant: (1) That the court failed to instruct the jury on the essential elements of the crime of larceny; (2) that the court erred in instructing the jury with reference to the defense of alibi; (3) that the court erred in refusing to permit the defendant to introduce evidence to show the commission of the crime by another person.
1. It is specifically claimed by appellant that the court, in the definition of larceny given to the jury, failed to include one of the essential elements, to wit, that the property alleged to have been stolen was without the consent of the owner. An examination of the instructions printed in the record disclose that the court gave to the jury the statutory definition of larceny as found in section 4832 of the Code. In addition thereto the court recited the following elements which the state was required to establish beyond a reasonable doubt to warrant the conviction of the defendant:
“(1) That the defendant took and carried away the property alleged; (2) that the said property was the property of F. M. Jamison; (3) that said property was chattels within the meaning of the law; (4) that such chattels were of value, and what was such value; (5) that such taking by the defendant was with the intent to steal and appropriate such chattels to his own use.”
[1][2] Ordinarily it is sufficient for the court to define the crime in the language of the statute. There are no common-law crimes in this state. If an act recognized by the common law as a crime is made punishable by our statute, but it is not expressly defined therein, we must look to the common law for the definition of that crime. State v. Twogood, 7 Iowa, 252;Estes v. Carter, 10 Iowa, 400; 16 C. J. 67.
To steal is to feloniously take and carry away the goods and chattels of another with intent to keep wrongfully. It is the act of larceny. Barnes v. State, 40 Neb. 545, 59 N. W. 125;State v. Tough, 12 N. D. 425, 96 N. W. 1025;Satterfield v. Com., 105 Va. 867, 52 S. E. 979. It is unquestioned law that a taking by the voluntary consent of the owner or through his authorized agent does not constitute larceny. Under the common law the offense of larceny is the wrongful taking and carrying away by a person of the personal property of another from any place, with a felonious intent to convert it to the taker's own use without the consent of the owner.
There can be no quarrel as to definition. The question is, Did the court sufficiently instruct as to the essentials of the crime?
Necessarily, to take without right or leave is against the consent of the owner. It was essential for the jury to find beyond a reasonable doubt that the property in the instant case was the property of F. M. Jamison, and that the taking by the defendant was with the intent to steal and appropriate such chattels to his own use. The court so instructed. There is no claim in the record that the defendant or any other person had the consent of the owner, and the circumstances of this case clearly and to a moral certainty negative the proposition that the goods and chattels were taken with the consent of the owner. This is sufficient. State v. Prentice, 183 N. W. 414.
This is a case of larceny “in the ancient, usual, and simple sense of stealing, taking and carrying away,” and refinement of definition and nicety of legal statement is not necessary to convey to the jury the essential elements of the crime. State v. Carter, 144 Iowa, 280, 121 N. W. 694.
There is nothing technical or complicated in the definition of larceny. Defendant did not request more specific instructions. It may not be said that any essential element of the crime charged, viewed...
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