State v. Bogardus
| Decision Date | 16 February 1920 |
| Docket Number | 33071 |
| Citation | 176 N.W. 327,188 Iowa 1293 |
| Parties | STATE OF IOWA, Appellee, v. EARL BOGARDUS et al., Appellants |
| Court | Iowa Supreme Court |
REHEARING DENIED MAY 11, 1920.
Appeal from Jefferson District Court.--C. W. VERMILION, Judge.
DEFENDANTS were tried, and found guilty of the crime of robbery. Judgment was pronounced that one of them be imprisoned in the penitentiary at Fort Madison, and the other in the reformatory at Anamosa. The defendants appeal.
Affirmed.
Jaques Tisdale & Jaques, for appellants.
H. M Havner, Attorney General, Charles W. Lyon, Assistant Attorney General, and Richard C. Leggett, County Attorney, for appellee.
Four grounds are relied upon for reversal. Briefly, they are: The alleged insufficiency of the evidence; that the court permitted an amendment to the indictment; the giving of an additional instruction; and lastly, that the jury were permitted to separate while deliberating on their verdict.
1. It appears that, on Sunday night, August 11, 1918, at about 10:30 or 11 o'clock, an automobile, driven by one Peacock, in which Clarence Faulds and Verdie Hoskinson, the prosecuting witnesses, and one Barker were riding, was held up by two masked men, one tall, the other small. Faulds was robbed of a gold watch and $ 90 in money, and Hoskinson of a diamond ring. The robbery took place at a bridge between Fairfield and Ottumwa, three miles east of Fairfield. No question is raised about the robbery's having been committed. The evidence will not be stated in detail. The acquaintance of the witnesses with defendants, the manner in which the robbers were dressed, the presence of the different ones in Fairfield, and other details, are given. After the robbery, Barker, Faulds, and Hoskinson were compelled to descend into the ditch near the bridge, and Peacock was compelled to turn his car around, and drive the robbers back east towards Fairfield. When the robbers reached a Ford car, which the occupants of the Peacock car had noticed standing at the side of the road, as they went west, they alighted, and got into their car and went on east. Peacock and a boy went back and met the other three victims, walking towards Fairfield. The victims had, in the meantime, telephoned to the sheriff. Faulds testifies that he recognized the two defendants as the parties who held them up that night. He testifies that Connell was in the restaurant when he had supper, before the robbery, and that Connell saw what witness had in his pocketbook. He testifies that he had met defendants and others in a crap game, two weeks before, and Bogardus in another crap game, the afternoon before the robbery. He heard Bogardus talk, and noticed that he talked through his nose. He had seen Connell two or three times. At the crap game in the afternoon, Peacock said he was "broke," and Bogardus was trying to get some money. Before the robbery, he saw a couple at the side of the road, with the reflection from the Peacock light. The robbers had guns and a flash light, one on each side of the auto. One was a tall, slender fellow, stoop-shouldered; had on a long tan or sheepskin coat. The other had on a pair of overalls, which were too large for him. The small man had a small automatic gun, and the other a large one. The small man walked up to witness, put his gun into witness' ribs, as he puts it, and went through him, but couldn't find his pocketbook. They first said, "Get that watch;" and witness gave them his watch. They got $ 4.00 or $ 5.00 in silver that witness had in his pocket, but they did not seem to be satisfied, and they went through witness two or three times; couldn't find the pocketbook. The big fellow said, "Got it all?" and the other said, "No." They went through him again, and the larger man told the smaller to look in the back seat of the car, and they found the pocketbook. He recognized Bogardus by the way he talked, through his nose; also, by the way he was dressed. Bogardus did most of the talking. The other man was small, and he could tell when he went through him. This witness is corroborated by Hoskinson, who testifies of a crap game, that morning and afternoon, at which Bogardus was present,--at least at the first game. Witness saw Faulds have some money in his possession that afternoon, and a gold watch. Witness had a diamond ring, and some money, at the game in the park. Later, he went to a restaurant, and saw both defendants. Hoskinson says he had known Connell for 10 or 12 years; had met him when he was going to school in Fairfield, and had seen him since, in Ottumwa, and Fairfield.
The State's witnesses are contradicted by witnesses for the defendant. Peacock says that neither of the robbers were the defendants. His evidence was considerably shaken on cross-examination, and the State contends that the diamond ring which was taken from the finger of Hoskinson proved to be the undoing of Peacock on cross-examination. There is evidence of a telephone call by Peacock, from Chicago, to Connell, and of the going to Chicago of Connell and Bogardus. We shall not go into the details of this transaction. The jury had it all. He testifies as to his intimacy with Connell, and about losing a diamond ring in a cabaret in Chicago; about its being in pawn, and about different girls' wearing it. He tries to make it appear that the ring he had was not the one taken in the robbery. He testifies about seeing Faulds and Hoskinson at the crap game on the afternoon of the day of the holdup, and that he took part in the game. He says:
Barker says that neither of the robbers looked like the defendants.
The mother and brother of Bogardus gave testimony, tending to establish an alibi for him, and say that he was at home, about 10 or 11 o'clock that night. A waitress at the cafe thinks Connell was in the restaurant all the time from 8 or 9 o'clock in the evening until after the holdup.
Without going into details, this is a brief summary of the evidence. A number of people were in the restaurant, and the waitress may have been engaged in her duties, and not noticed particularly any particular person continuously for two or three hours. Evidence as to alibi is not always trustworthy, when given by relatives, and when they do not attempt to fix the time accurately, or within an hour or so, as in this case. Defendants do not state where they were. They were not witnesses. The credibility of the witnesses and the weight to be given to their testimony as to the identification of defendants are sufficient to sustain the finding of the jury.
2. The indictment, as originally drawn, omitting caption and signature of the county attorney, is as follows:
The county attorney was permitted to amend the indictment in regard to the ownership of the property, as follows:
"Which said gold watch and $ 90 lawful money of the United States were then and there the property of and owned by the said Clarence Faulds, and which said diamond ring was then and there the property of and owned by the said Verdie Hoskinson."
The thought of appellant is that the indictment, as originally returned, charges, and is a good indictment for, assault with intent to rob, and that, in such an indictment, it is not necessary, under the holding in State v. Gulliver, 163 Iowa 123, 142 N.W. 948, to allege the ownership of the stolen property. They argue, too, that an assault with intent to rob is a degree of the crime of robbery. They then argue that the indictment, when amended, charges a different degree of crime from that charged in the original indictment, contrary to Section 5289, Code Supplement, 1913.
We think the argument is built up on the assumption that the indictment originally charged only assault with intent to rob. The original indictment does not specifically charge any assault, but simply charges that, by force and violence, and by putting in fear, the defendants did steal and take from the persons of Hoskinson and Faulds property, etc. It charges robbery, and the original indictment itself, we think, comes very near alleging the ownership of the property, and does so, by implication at least. The amendment does not charge a different crime or different degree of crime from that charged in the original indictment, but simply makes more specific the allegation concerning the ownership, which is expressly permitted in the statute before cited. We think this case, at this point, is ruled by State v. Kiefer, 172 Iowa 306, 151 N.W. 440.
3. After the jury had deliberated on...
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State v. Johnny Blahnik Church
... ... Kelley , 161 N.W.2d ... 123, 126 (Iowa 1968) (holding there was "nothing here to ... suggest coercion" where the jury deliberated for ... twenty-two hours and returned a verdict two and one-half ... hours post-instruction); State v. Bogardus , 176 N.W ... 327, 329 (Iowa 1920) (holding there was no coercion where ... jury returned a verdict one and one-half hours ... post-instruction) ... With ... respect to the third consideration, the jury poll did not ... reveal any evidence of ... ...
- State v. Bogardus