State v. Carter
| Decision Date | 05 June 1909 |
| Citation | 121 N.W. 694,144 Iowa 280 |
| Parties | THE STATE OF IOWA, Appellee, v. W. L. CARTER, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED, TUESDAY, OCTOBER 26, 1909.
Appeal from Polk District Court.--HON. W. H. MCHENRY, Judge.
INDICTMENT for larceny from a building. Verdict of guilty. Judgment of imprisonment not to exceed the term of five years. Defendant appeals.
Affirmed.
O. M Brockett, for appellant.
H. W Byers, Attorney-General, and C. W. Lyon, Assistant Attorney-General, for the State.
Omitting the formal allegations, the crime charged against the defendant is stated in the indictment as follows: "The said W. L. Carter, on or about the 10th day of December, A. D. 1907, in the county of Polk, in the State of Iowa, did then and there, in a certain building of the Des Moines Implement Company, willfully, unlawfully, and feloniously steal, take, and carry away one gasoline engine, the more particular description of which engine is to the grand jury at this time unknown, of the value of $ 180 in lawful money of the United States, and being then and there of the personal property, goods, and chattels of the said Des Moines Implement Company; the more particular statement of the facts constituting the offense herein charged as to the time, place, and manner of the commission thereof being to the grand jury at this time unknown." The evidence tends to show that on or about December 10, 1907, a certain gasoline engine, owned by and in the possession of the Des Moines Implement Company, was stolen from its building in Des Moines by some person, or persons. About three months thereafter a gasoline engine, identified by the State's witnesses as the one stolen from the Implement Company, was found in the possession of the defendant at his home near Des Moines. Other circumstances were shown on the trial tending to indicate defendant's complicity in the alleged theft, while he on his part introduced testimony tending to rebut the case made by the State, and to explain his possession of the engine and establish his innocence of the crime charged against him. Objection in due form was also raised to the sufficiency of the indictment.
I. The point made against the indictment is that there is no such crime as "larceny from a building" as distinguished from simple "larceny." Code, section 4831, defines simple larceny as the act of stealing, taking, and carrying away the goods or chattels of another, and provides a maximum penalty of five years' imprisonment in the penitentiary, where the value of the property stolen exceeds $ 20, and a fine of $ 100, or imprisonment in the county jail for thirty days, when the value of such property does not exceed $ 20. Code, section 4832, provides an increased penalty for larceny committed in a building in the nighttime, and Code, section 4833, provides that larceny committed in a building in the day shall be punished by a maximum imprisonment for five years, where the property stolen exceeds $ 20 in value, and where such value does not exceed $ 20, the punishment is by fine not exceeding $ 200, and imprisonment in the county jail not exceeding one year.
It will be noticed by reference to the indictment that the larceny of the engine in question is charged to have been made "in a building," but does not allege whether it was committed in the nighttime or in the daytime. If the three sections of the statute were to be construed as defining three different crimes, there would be much strength in the position taken by counsel, but such we think is not the force and effect of the language employed. The crime defined in each instance is larceny. Under the criminal law of this State we have no degrees of larceny by names or number, but the same effect is obtained by varying the severity of the punishment accordingly as certain specifically described circumstances do or do not accompany the commission of the offense. If, therefore, the indictment alleges with reasonable certainty that accused feloniously took, stole, and carried away the goods or chattels of another, it charges the offense defined by section 4831. If, in addition to such charge of larceny, it alleges facts which, if proved, will justify the increased penalty provided in another section, such punishment may be imposed, but if the additional allegation is insufficient to make the case one calling for the increased penalty, and a verdict of guilty is returned, we are unable to see any logical ground for denying the validity of the conviction as one for simple larceny, or for saying that the accused has suffered any prejudice by reason of the unsuccessful attempt of the State to allege and prove matters of aggravation. A statement of facts constituting the commission of the crime, with aggravating circumstances increasing the maximum limit of punishment, certainly includes a statement of facts constituting the simple offense without aggravation, and failure to prove the matters of aggravation leaves the accused still liable to conviction for the simple offense, if the testimony be sufficient to sustain the verdict. State v. Ensley, 10 Iowa 149; State v. Gaffeny, 66 Iowa 262, 23 N.W. 659; State v. Maxwell, 42 Iowa 208; State v. Nordman, 101 Iowa 446, 70 N.W. 621.
Thus far we have considered the indictment upon the assumption of counsel that the words "in a building" add no material allegation to the indictment. It will be conceded that the allegation would have been in better form if the pleader had added thereto the words "in the nighttime" or "in the daytime," according as he expected to show by his evidence. But we are not prepared to say that their omission is sufficient to invalidate a conviction thereunder of larceny in the daytime. A larceny committed in a building must necessarily have been committed either in the daytime or in the nighttime, and we think it no violation of the rules of criminal pleading which prevail in this State to say that the allegation of larceny "in a building," without alleging the time of its commission, will be treated as a charge of less serious offense. In the case before us it is not material upon which theory the case is disposed of. The maximum punishment of simple larceny of property exceeding $ 20 in value is five years, and the maximum punishment of larceny in a building in the daytime of property exceeding $ 20 in value is precisely the same. The verdict finds the defendant guilty of larceny of the engine, and assesses its value in excess of $ 20, and under our maximum sentence ...
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