State v. Callahan

• Court: Iowa Supreme Court
• Writing for the Court: Robinson, J.
• Citation: State v. Callahan, 96 Iowa 304, 65 N.W. 150 (Iowa 1895)
• Decision Date: 11 December 1895
• Parties: STATE OF IOWA v. ROBERT CALLAHAN, Appellant

65 N.W. 150

96 Iowa 304

STATE OF IOWA v. ROBERT CALLAHAN, Appellant

Supreme Court of Iowa, Des Moines

December 11, 1895

Appeal from Polk District Court.--Hon. W. F. CONRAD, Judge.

The defendant, Robert Callahan, was convicted of the crime of robbery, and from the judgment which required him to be imprisoned in the penitentiary in Fort Madison for the term of ten years, he appeals.

Affirmed.

Mackenzie & Dewey for appellant.

Milton Remley, attorney general, and Jesse A Miller for the state.

OPINION

Robinson, J.

I.

The appellant and two others were indicted jointly for the crime of robbery, which is charged in the indictment to have been committed as follows: "The said Jack Kelley, Jeff Osborn, and Robert Callahan, on the sixth day of January 1893, in the county of Polk aforesaid, the said defendants being then and there in the city of Des Moines, Polk county Iowa and they, the said defendants, then and there being armed with dangerous weapons, to-wit, with revolvers, with the felonious intent then and there to kill and maim one E G. Cless, then and there, if he, the said E. G. Cless, should resist them, the said defendants, and the said defendants then and there being armed, as aforesaid, with the felonious intent aforesaid, did then and there willfully and unlawfully in and upon one E. G. Cless feloniously make an assault, and the said E. G. Cless in bodily fear and danger of his life then and there did feloniously put, and one gold watch of the value of thirty-five dollars, of the property of the said E. G. Cless, then and there feloniously and unlawfully did rob, steal, take, and carry away, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Iowa." The appellant contends that the indictment charges two distinct offenses, neither of which is the crime of robbery; that one of the offenses so charged is an assault with intent to kill and maim, and the other a larceny from the person; and that the indictment is therefore bad for duplicity. The indictment can hardly be regarded as a model one, but we think that the language it contains, fairly construed, charges with reasonable certainty that the appellant committed the crime of robbery, and that, at the time, he was armed with a dangerous weapon, with intent, if resisted, to kill and maim the person robbed; that the taking of the property was accomplished by violence, and by putting in fear, contrary to the will of the person robbed. See State v. Kegan, 62 Iowa 106 (17 N.W. 179). The indictment was intended to charge but one offense, and the record shows that it was treated, during the trial of the cause, without objection from any one, as charging the crime of robbery, and that it was committed by the defendant, when armed with a dangerous weapon, with intent, if resisted, to kill or maim his victim. The language which tends to charge more than this may be regarded as surplusage. State v. Hull, 83 Iowa 112 (48 N.W. 917); State v. Ormiston, 66 Iowa 143 (23 N.W. 370); State v. Shaffer, 59 Iowa 291 (13 N.W. 600); State v. Ridley, 48 Iowa 370; State v. Hayden, 45 Iowa 11; State v. Brown, 95 Iowa 381 (64 N.W. 277). In State v. Henry, 59 Iowa 391 (13 N.W. 343), it was held that objection to an indictment on the ground of duplicity cannot be made for the first time in this court. We conclude that the indictment is sufficient; but, if it were defective, the objections now made to it could not be sustained, for the reason that they were not presented to the district court.

II. It is...