State v. Berenger, 53087

• Decision Date: 15 October 1968
• Docket Number: No. 53087,53087
• Citation: 161 N.W.2d 798
• Parties: STATE of Iowa, Appellee, v. Donald Dean BERENGER, Appellant.
• Court: Iowa Supreme Court

Page 798

161 N.W.2d 798

STATE of Iowa, Appellee, v. Donald Dean BERENGER, Appellant.

No. 53087.

Supreme Court of Iowa.

Oct. 15, 1968.

Thomas C. Mehesan, Jr., Spencer, for appellant.

Richard C. Turner, Atty. Gen., David A. Elderkin, Asst. Atty. Gen., and Robert W. Sackett, County, Atty., Spencer, for appellee.

GARFIELD, Chief Justice.

Defendant was charged by county attorney's information, tried before court and jury and convicted of breaking and entering a garage with intent to commit a public offense, contrary to section 708.8 Code 1966. Upon his appeal we affirm the judgment of conviction.

Three alleged errors are relied upon: First, overruling defendant's motion to dismiss and set aside the information as failing to define the crime charged sufficiently to allow him to frame a defense. Second, overruling defendant's motion for continuance because of surprise in learning, just prior to the trial, the state would seek to prove defendant intended to commit more than one public offense in the building. Third, claimed error in jury instruction 10. We consider the assigned errors in the order stated.

Since the errors all involve the wording of the information we set it out except for the caption and signature.

'Comes now Robert W. Sackett, County Attorney of Clay County, State of Iowa, and in the name and by the authority of the State of Iowa, accuses Donald Dean Berenger of the crime of breaking and entering and charges that the said Donald Dean Berenger in the County and State aforesaid did on or about the 15th day of December, 1967 with intent to commit a public offense, break and enter the James D. Gibson station garage in Gillett Grove, Clay County, Iowa, contrary to Section 708.8 of the 1966 Code of Iowa.'

Code section 708.8, so far as applicable, provides: 'Other breakings and enterings. If any person, with intent to commit any public offense, * * * break and enter any * * * building in which any goods, merchandise, or valuable things are kept for use, sale, or deposit, he shall be imprisoned * * *.'

I. The substance of defendant's motion to dismiss or set aside the information is stated supra among the errors assigned. The first error is largely based on the fact the information does not specify the public offense defendant intended to commit in breaking and entering the building. It is said this is a necessary ingredient of the offense which must be set out in the information. We agree the intent with which a breaking and entering is committed is a necessary element of the crime, but under our statutes and the record here it was not error to overrule the motion to dismiss.

We note that a motion to dismiss an information (or indictment) is unknown to our criminal procedure. State v. Ramos, Iowa, 149 N.W.2d 862, 866. As in the cited case, we have treated the motion as a demurrer filed under section 777.2. This statute provides, so far as applicable, a demurrer to an indictment (or information) will lie 'when it appears upon its face, * * * 1. That it does not substantially conform to the requirements of this code, * * *.'

We have frequently held an information is demurrable only on grounds stated in the statute. State v. Youngblut, 257 Iowa 343, 345, 132 N.W.2d 486, 487, and citations.

Our present statutes are quite clear as to what an indictment must charge and what is unnecessary. Section 773.4 provides an indictment is valid and sufficient if it charges the offense in one or more of these 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.'

Section 773.5 adds this:

'No indictment which charges the offense in accordance with * * * 773.4 shall be held to be insufficient on the ground that it fails to inform the defendant of the particulars of the offense.'

We think the information here complies with section 773.4. It uses the name given the offense by statute; it also states so much of its statutory definition as seems sufficient; it refers to the code section creating the crime charged.

Section 773.6 contains that:

'1. When an indictment charges an offense in accordance with the provisions of section 773.4, but such indictment together with the minutes of the evidence filed therewith fails to inform the defendant of the particulars of the offense sufficiently to enable him to prepare his defense, or to give him such information as he is entitled to under the constitution of this state, the court may, of its own motion, and shall, at the request of the defendant, order the county attorney to furnish a bill of particulars containing such information as may be necessary for these purposes, or the county attorney may of his own motion furnish such bill of particulars.'

The record shows no request from defendant that he be furnished a bill of particulars and we find no abuse of discretion in the failure of the court, under the circumstances here, to order one on its own motion.

In determining the sufficiency of the information it is proper to consider that the permissible forms for informations set out in section 773.35 include: '(Other breaking and enterings)--A.B. broke and entered the dwelling of C.D. (or A.B. committed an entry of the dwelling of C.D., or A.B. broke and entered office of C.D. as the case may be).' See also section 773.2.

These permissible forms do not require that the information state the building was broken and entered with intent to commit a public offense, much less the particular offense intended. We have held such an allegation is not necessary and that the charge (as here) the breaking and entering was contrary to what is now section 708.8 sufficiently informs defendant of the crime of which he was accused. State v. Stack, 221 Iowa 727, 730, 266 N.W. 523 and citations. See also State v. Cowman, 239 Iowa 56, 60--61, 29 N.W.2d 238, 241; State v. Haesemeyer, 248 Iowa 154, 160--161, 79 N.W.2d 755, 759. Here, as stated, the information charges breaking and entering with intent to commit a public offense.

Quite in point on principle is State v. Wagoner, 247 Iowa 461, 462--463, 74 N.W.2d 246, 247--248, which upholds validity of an indictment, as against demurrer, for assault with intent to commit a felony in violation of Code section 694.5, without specifying the felony defendant intended to commit. The cited opinion inaccurately states what is now Code chapter 773, frequently called the 'Short Indictment Act,' was passed by the Thirty-third G.A. in 1929. The reference should have been to the Forty-third G.A.

We have held several times indictments and informations for different crimes which comply with the provisions of what is now chapter 773 are sufficient. State v. Stack, supra, 221 Iowa 727, 730, 266 N.W. 523, and citations; Meeks v. Lainson, 246 Iowa 1237, 1239, 71 N.W.2d 446, 448; State v. Craig, 252 Iowa 290, 292--293, 106 N.W.2d 653, 654.

Chapter 773 has withstood constitutional assaults, such as those based on the requirement of section 10, article I, Iowa Constitution that an accused be informed of the accusation against him, because of his right to a bill of particulars where he is not sufficiently informed of the particulars of the offense. (Section 773.6, supra) Meeks v. Lainson, supra, and citation; State v. Engler, 217 Iowa 138, 143--146, 251 N.W. 88, and citations.

'In the absence of a request for a bill of particulars, any indictment which meets the requirements of the short form indictment law is legally sufficient.' Meeks v. Lainson.

Defendant cites no Iowa case to support this assignment decided since chapter 773 was enacted. The latest one cited is State v. Sexsmith, 200 Iowa 1244, 206 N.W. 100, decided some 3 1/4 years before the enactment. It held demurrable an indictment for manslaughter by 'gross negligence and recklessness' without specifying the facts on which this conclusion was based. The precedent is not in point not only because it was decided under the former statute but also because the crime charged was (and is) not defined by statute. The opinion recognizes that even under the former statute 'There are crimes which are chargeable in an indictment in the language of the statute. Such are crimes which...