State v. Bartlett

• Decision Date: 17 October 1905
• Citation: 128 Iowa 518,105 N.W. 59
• Parties: STATE v. BARTLETT.
• Court: Iowa Supreme Court

128 Iowa 518

105 N.W. 59

STATE

v.BARTLETT.

Supreme Court of Iowa.

Oct. 17, 1905.

Appeal from District Court, Monroe County; M. A. Roberts, Judge.

Indictment charging defendant with larceny from a building in the daytime. Verdict and judgment of guilty, and defendant appeals. Reversed.John F. Clarkson, for appellant.

Chas. W. Mullan, Atty. Gen., and L. De Graff, Asst. Atty. Gen., for the State.

WEAVER, J.

1. The indictment described the goods alleged to have been stolen as belonging to the “Golden Eagle Clothing Store.” The testimony on the trial disclosed that the goods were owned by a partnership bearing the firm name of “Oppenheimer, Beeson & Morse Company,” and appellant contends that the variance is fatal to the state's case. It is shown, however, without dispute, that “Golden Eagle Clothing Store” was the name in which the business was ordinarily advertised, the name in which the firm received and indorsed checks, and by which it was generally known. We think there is no variance to the prejudice of the substantial rights of the appellant, and the exception cannot be sustained.

2. The appellant was jointly indicted with three other defendants, and the testimony tended to show that the offense, if any, was committed by two or more persons, acting in concert. Upon this feature of the case the court charged the jury as follows: “(7) If you find that said larceny was committed by some one of the defendants, then you must determine whether or not any of the other defendants was aiding and abetting the commission of said larceny; that is, had knowledge of the fact that said crime was in contemplation by the party or parties who actually stole said property or that the same was being committed, and aided or assisted in the commission of said crime.” The objection made to this paragraph we are disposed to think is well taken. While we are very confident that the trial court did not mean to be understood as saying that mere knowledge by one of the defendants that the crime was in contemplation by the party or parties who actually stole the property would constitute an aiding or abetting of the crime within the meaning of the law, we feel equally certain that the use of the words we have italicized, in the manner and connection in which they are there employed, was well calculated to leave that wrong impression upon the mind of the average juror. We are, perhaps, entirely safe in assuming that the court meant to be understood as saying that if either of the defendants had knowledge of the fact that the crime was in contemplation or that such crime was being committed, and, having such knowledge, aided or assisted in its perpetration, then such defendant was an aider and abetter within the contemplation of the law; but this, we think, it did not clearly say. That something more than knowledge that a crime is contemplated, and more even than mere personal presence at the time and place where a crime is committed, must be shown in order to charge one with complicity in the offense, is so well established that time need not be taken in further discussion of the proposition. State v. Farr, 33 Iowa, 553.

3. There was evidence tending to show that within a short time after the alleged larceny from the Golden Eagle Clothing Store some of the stolen goods were found in the...