State v. Congrove

• Decision Date: 03 October 1899
• Parties: STATE v. CONGROVE.
• Court: Iowa Supreme Court

109 Iowa 66

80 N.W. 227

STATE

v.CONGROVE.

Supreme Court of Iowa.

Oct. 3, 1899.

Appeal from district court, Louisa county; W. S. Withrow, Judge.

The indictment charged that the defendant “did take, steal, and carry away articles of men's clothing,” enumerating them, “all of which was of the value of $30,” and the property of John Buster, Ernest Webster, Howard Sellers, and George Buster. John Buster testified that, of the property, he owned individually a pair of trousers, a pair of drawers, and a pair of socks, and that George Buster so owned a rain coat. This evidence was striken, on the ground that it did not tend to support the indictment. The state then offered to show that other articles described in the indictment were owned by Sellers and Webster, wherefore the same objection was interposed and sustained, and a verdict of acquittal directed. The state appeals. Reversed.Milton Remley, Atty. Gen., and F. M. Molsberry, Co. Atty., for the State.

LADD, J.

The articles described in the indictment were together in a shed, and the evidence tended to show that the defendant stole all of them at the same time and in the same act. Though these belonged to four different persons, severally, and not jointly, the transaction constituted but a single offense. Lorton v. State, 7 Mo. 55;State v. Hennessey, 23 Ohio St. 339;Wilson v. State, 45 Tex. 76;State v. Emery, 68 Vt. 109, 34 Atl. 432. See State v. Pierce, 77 Iowa, 245, 42 N. W. 181. In such a case, the particular ownership of the several articles should have been averred. People v. Johnson, 81 Mich. 573, 45 N. W. 1119; 1 McClain's Cr. Law, § 602. But the indictment laid the ownership of the property in four persons jointly, while the proof was that a distinct portion of it belonged to each. That this would have been a fatal variance at the common law is not questioned. Widner v. State, 25 Ind. 234;State v. Ellison, 58 N. H. 325. The purpose in averring ownership in another is to negative title in the accused, and to advise him of the charge lodged against him. Ownership in some one other than the defendant, and not any particular person, then, is of the essence of the crime. If the act be fully identified in the indictment in other respects, and this rebuts the possibility of ownership in the accused, the mere mistake as to the name of the owner cannot prejudice the defendant. For this reason, our Code provides that “when an offense involves the commission of or attempt to commit an injury to the person or property, and is described in other respects with sufficient certainty to identify the act, an erroneous allegation as to name of person injured or attempted to be injured is not material.” Section 5286. The offense was sufficiently...