State v. Brooks

• Citation: 52 N.W. 240,85 Iowa 366
• Parties: STATE v. BROOKS.
• Decision Date: 20 May 1892
• Court: United States State Supreme Court of Iowa

85 Iowa 366

52 N.W. 240

STATE

v.BROOKS.

Supreme Court of Iowa.

May 20, 1892.

Appeal from district court, Monona county; G. W. WAKEFIELD, Judge.

February 13, 1890, an indictment was returned charging the defendant with the crime of larceny, as defined in chapter 30, Acts 21st Gen. Assem., to which he pleaded not guilty, February 15, 1890, and upon which he was tried by a jury, April 28, 1888, and convicted and sentenced to imprisonment in the penitentiary, from which he appeals.J. A. Prichard and Charles Mackenzie, for appellant.

John Y. Stone, Atty. Gen., and Thomas A. Cheshire, for the State.

GIVEN, J.

1. When the case was called for trial the following proceedings were had: “The plaintiff moves the court, in the case of the State of Iowa vs. F. W. Brooks, to correct that portion in the beginning of the indictment--the same reads as it now stands, ‘The said F. W. Brooks, on or about the 15th day of November, 1890’--so that the same shall read as follows: ‘That the said F. W. Brooks, on or about the 15th day of November, 1888.’ The defendant objects, for the reason that it does not appear that the mistake is a clerical error, and for the reason that the defendant has pleaded to the indictment as it now is, and for the reason that it is not such a mistake as the state can correct on oral motion, for the reason that a correction of the same would greatly prejudice the defendant, if made at this time; for the further reason that the defendant would not have an opportunity to plead to the indictment corrected.” The objection was overruled, and the defendant then and there excepted.

That stating the year as 1890 was a clerical error is not only apparent from the fact that it was a date subsequent to the finding of the indictment and to the trial, but from other allegations of dates appearing in the indictment. Following that statement of the date, it charges that defendant, as agent of C. L. Hewitt, received $1,200 on or about the 15th day of November, 1888; and that “on or about the 15th day of November, 1888,” he converted the same to his own use. It is not only apparent that the date “1890” was an impossible date, and a clerical error, but that, omitting that date, still the offense is charged to have been committed at a time possible and certain, namely, “on or about the 15th day of November, 1888.” Code, § 4538, requires that we “must examine the record, and, without regard to technical errors or defects which do not affect the substantial rights of the parties, render such judgment on the record as the law demands,” “A mere clerical error, which can be discovered by a casual reading of the indictment itself, will not render it fatally defective.” State v. Crawford, 66 Iowa, 318, 23 N. W. Rep. 684;State v. Gurlock, 14 Iowa, 444;State v. Emeigh, 18 Iowa, 122;State v. White, 32 Iowa, 17. This being a mere clerical error, apparent upon the face of the indictment, the defendant was not prejudiced by allowing the correction. “Where a defective averment may, without detriment to the indictment, be wholly omitted, it may be considered as surplusage, and disregarded.” State v. Freeman, 8 Iowa, 428;State v. Ormiston, 66 Iowa, 143, 23 N. W. Rep. 370;State v. Ansaleme, 15 Iowa, 44;State v. Goode, 68 Iowa, 593, 27 N. W. Rep. 772. We have seen that, omitting this evidently defective averment, the indictment charges the crime to have been committed at a possible and definite time. There is conflict in the authorities as to whether an allegation of an impossible date may be corrected, but, there being an allegation of a possible date, and the erroneous allegation being merely by a clerical error and surplusage, we do not think this question is involved in this case. We think it may be said in this case, as was said in State v. Crawford, 66 Iowa, 320, 23 N. W. Rep. 684, that “a mere casual reading of this indictment shows that this merely clerical error does not affect the charge, and that there is sufficient matter alleged to indicate clearly the offense charged.” The defendant was not prejudiced in any substantial right by permitting the state to declare upon the record the date at which it would claim the offense to have been committed.

2. The following statement of the facts, with such as are hereafter mentioned, will be sufficient for a correct understanding of the questions presented: Appellant was in business at Mapleton, and engaged in procuring loans. In September, 1888, C. L. Hewitt applied for a loan of $1,200 on a certain quarter section of land, and was informed by appellant that he thought he could get it for him. Thereafter Mr. Hewitt signed an application for the loan made out by one Prichard on the blank used by Cook & Dodge of Davenport, Iowa, which application was sent to appellant, and by him to Cook & Dodge. October 11, 1888, Cook & Dodge sent notes and mortgage to appellant for Hewitt to execute; which being executed by Hewitt, and returned to them by appellant with an abstract of title, Cook & Dodge sent to appellant a draft, payable to his order, for $1,199.40, the receipt whereof he acknowledged “for the Hewitt loan,” November 15, 1888. This draft was drawn by the Citizens' National Bank of Davenport on Merchants' National Bank of Chicago, November 13, 1888. On November 15, 1888, appellant and one J. H. Cook called at the Onawa State Bank at Onawa, Monona county, Iowa, when and where appellant presented, indorsed and had said draft cashed, the bank paying him “the full face amount.” Mr. Cook was there representing his daughter, to whom appellant was indebted in the sum of $582. This sum was paid out of the amount coming to appellant upon the draft, and by direction of Cook, with the consent of appellant, deposited to the credit of one McMillan, appellant receiving the balance. This draft was returned to the Citizens' National Bank of Davenport as paid by the Chicago bank. It does not appear what appellant did with the balance of the money, other than the $582; but it does appear that, though demanded so to do, he never paid any part of the money to Mr. Hewitt, or to any person for his use or benefit, and that he never returned any part of it to Cook & Dodge. Under date of March 2, 1889, he wrote to Mr. Hewitt that he had heard from Dodge in regard to the loan; that he would send him papers in a short time; that it would take a week or more to get them; and that he would like to have it arranged so he could place the loan. The land to be mortgaged was incumbered, and Hewitt sought the loan to pay the incumbrances. There is a dispute whether the amount of the loan was sufficient to do so. It is evident that Cook & Dodge and Hewitt intended that appellant should pay the existing liens out of the proceeds of the draft, so as to leave Cook & Dodge's mortgage the first lien. Under date March 25, 1889, Cook & Dodge wrote to appellant, stating that they had a letter from Hewitt stating that he had not received the money. They say “the reason probably is that the amount of the loan, $1,200, is not sufficient to pay off the prior claims. If this is the case, you had better return the money.” It is evident that from the receipt of the draft in November, 1888, to April, 1889, appellant was concealing the fact of its receipt from Mr. Hewitt, and conveying the impression to Cook & Dodge that there was something in the way of completing the transaction; while the fact was he had used at least part of the money, and was making no effort to complete it.

3. Mr. Hewitt was permitted to testify, against appellant's objection, “that he was served with summons at the last term of court, demanding of him $1,300 on this mortgage,” and that appellant had not paid any of the liens, or paid any money to or for him, since he gave the mortgage. It is contended this evidence was secondary. Concede this, and yet it was without...