State v. Bogardus
| Decision Date | 16 February 1920 |
| Docket Number | No. 33071.,33071. |
| Citation | 176 N.W. 327,188 Iowa 1293 |
| Parties | STATE v. BOGARDUS ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Jefferson County; 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 Ft. Madison, and the other at the reformatory at Anamosa. The defendants appeal. Affirmed.Jacques, Tisdale & Jacques, of Ottumwa, for appellants.
H. M. Havner, Atty. Gen., Chas. W. Lyon, Asst. Atty. Gen., and Richard C. Leggett, County Atty., of Fairfield, for the State.
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] 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 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 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, 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 in 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 or $5 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 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 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 of Peacock, from Chicago, to Connell, and 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 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 hold-up, and that he took part in the game. He says:
Barker says 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 café thinks Connell was in the restaurant all the time from 8 or 9 o'clock in the evening until after the hold-up. 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 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, is sufficient to sustain the finding of the jury.
[2] 2. The indictment, as originally drawn, omitting caption and signature of the county attorney, is as follows:
“The grand jury of the county of Jefferson, in the name and by the authority of the state of Iowa, accuses Earl Bogardus and Fred Connell of the crime of robbery, committed as follows:
The said Earl Bogardus and Fred Connell, on or about the 11th day of August in the year of our Lord 1918 in the county aforesaid, did, by force and violence and by putting in fear, steal and take from the persons of Verdie Hoskinson and Clarence Faulds property that is subject of larceny, to wit, one gold watch, one diamond ring, and $90 lawful money of the United States, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Iowa.”
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 by amending the indictment, it charges a different degree of crime from that charged in the original indictment, contrary to section 5299 of the Code. 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 nearlyalleging 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] 3. After the jury had deliberated on their verdict about 30 hours, the court, gave the following additional instruction:
“This case has been exhaustively and carefully tried by both sides and at considerable expense, and has been submitted to you for decision and verdict, not for disagreement.”
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State v. Myers
... ... Barlow, 242 Iowa 714, 46 N.W.2d 725; In re Estate of Cocklin, 232 Iowa 266, 5 N.W.2d 577; State v. Bogardus, 188 Iowa 1293, 176 N.W. 327, and citations. Compare Clemens v. Chicago, R. I. & P. Ry. Co., 163 Iowa 499, 144 N.W. 354, and State v. Peirce, 178 Iowa 417, 159 N.W. 1050 ... Here the court told the jury that 'Each juror should listen to the arguments of other jurors with a ... ...
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State v. Campbell, 63050
... ... In Myers, the presumption of prejudice there articulated was considered avoided by deliberations lasting only forty-one minutes after the verdict-urging instruction was given. 258 Iowa at 952, 140 N.W.2d at 898. In State v. Bogardus, 188 Iowa 1293, 1299, 176 N.W. 327, 329 (1920), this court stated that the fact that the jury deliberated an hour and one-half after receiving the practically identical instruction given here showed the absence of coercion. The jury in Bogardus had deliberated approximately thirty hours before ... ...
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