State v. Bogossian
| Citation | 200 N.W. 586,198 Iowa 972 |
| Decision Date | 11 November 1924 |
| Docket Number | 36216 |
| Parties | STATE OF IOWA, Appellee, v. PHILIP BOGOSSIAN, Appellant |
| Court | United States State Supreme Court of Iowa |
Appeal from Scott District Court.--A. P. BARKER, Judge.
INDICTMENT for grand larceny. There was a judgment and verdict of guilty, and defendant has appealed.
Affirmed.
F. C Harrison, for appellant.
Ben J Gibson, Attorney-general, Herbert A. Huff, Assistant Attorney-general, John Weir, County Attorney, Walter Newport and J. J. McSwiggin, for appellee.
I. The subject-matter of the larceny charged consisted of a brass bed, four chairs, one rug, and one vacuum cleaner, all of which were found in the possession of the defendant. The specific nature of the defense of not guilty, as made in this case, was that the defendant acted under the insane impulse of kleptomania, and that he was not morally responsible for the act committed by him. The specific character of this defense is somewhat overlooked in the grounds of reversal urged before us. One of these grounds is that the State made an unlawful search of the defendant's premises and obtained possession of the stolen goods pursuant to such unlawful search, and that, for such reason, the evidence of the searching officials in relation to the finding of such goods was all improperly received, and that a verdict should have been directed for the defendant on that ground. Recognizing our holding in State v. Tonn, 195 Iowa 94, 96, 191 N.W. 530, and State v. Rowley, 197 Iowa 977, 195 N.W. 881, the appellant contends for a distinction in the case at bar. The evidence for the State was that the search of the defendant's premises was made with his express consent, after he had been informed of the purpose of the officers. This was the state of the record when the evidence now under attack was admitted in the court below. Later in the trial, the defendant qualifiedly denied such consent. The trial court met this situation by instructing the jury, in substance, that, unless the search was made with the consent of the defendant, it would be illegal, as made without a warrant, and that, in such event, the jury should return a verdict for the defendant. We shall have no occasion to pass upon the correctness of the court's instructions or of his ruling admitting the testimony, for the simple reason that, in the course of the trial, the defendant became a witness in his own behalf, and testified directly and unequivocally that he did take and carry away from the possession of the owner the specific goods charged in the indictment. This testimony on his part rendered the question of the method by which the State obtained its evidence quite immaterial and nonprejudicial. It narrowed the practical issue for the jury to the one question as to whether, in so taking the goods, the defendant acted rationally, or whether he acted under an irresistible insane impulse, for which he was not morally responsible. It was his evidence that, in the taking of the goods, he acted under such a compulsion.
In the examination of the record for errors, we shall, therefore, confine ourselves to this phase of the defense. On such phase, complaint is made that the court improperly instructed the jury, in the use of the following language:
"But if it appears from all of the facts and circumstances in evidence in the case that the defendant committed the acts charged in the indictment, and that he then rationally understood the nature and consequences of his said acts, and was not driven to them by an insane and irresistible impulse, then he cannot claim the protection of insanity, and is guilty of the crime charged in the indictment."
The point made is that, instead of using the phrase "an insane and irresistible impulse," the court should have said, "an insane or irresistible impulse."
In support of this point, appellant relies upon State v. McCullough, 114 Iowa 532, 87 N.W. 503; State v. McGruder, 125 Iowa 741, 749, 101 N.W. 646. The cited cases do not sustain the point. In the first cited case, the expression "insane and irresistible impulse" was sustained, though the case was reversed on other grounds. In the second of the cited cases, the form approved was "irresistible insane impulse." It was held that the showing of such was a sufficient defense, without proof of weakness or idiocy. When the language complained of is further considered in the light of its context, it presents no ground of complaint. As a part of such context, the court instructed as follows:
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