State v. Cunningham

• Decision Date: 08 May 1900
• Citation: 111 Iowa 233,82 N.W. 775
• Parties: STATE v. CUNNINGHAM.
• Court: Iowa Supreme Court

111 Iowa 233

82 N.W. 775

STATE

v.CUNNINGHAM.

Supreme Court of Iowa.

May 8, 1900.

Appeal from district court, Audubon county; Walter I. Smith, Judge.

The indictment charges murder in the first degree. From a judgment of conviction entered on a verdict of guilty, defendant appeals. Affirmed.B. I. Salinger and John H. Mosier, for appellant.

Milton Remley, Atty. Gen., and Chas. A. Van Vleck, Asst. Atty. Gen., for the State.

WATERMAN, J.

Defendant was tried for the killing of an illegitimate male infant born to one Ida Hepp, and begotten by him. The child was 12 days old on the alleged date of the killing. It had no name until the grand jury saw fit to give it one made up of the names of its parents. The indictment is in two counts, the same in form. The first charges the killing to have been done with a blunt instrument; the other, with the hands and feet of defendant. As a material question presented relates to the form of the indictment, we set out the first count: “The said James Cunningham and Arthur Palmer on the 5th day of March, A. D. 1898, in the county of Audubon and state of Iowa, as aforesaid, upon the body of one James Cunningham Hepp, then and there being, willfully, feloniously, deliberately, premeditatedly, and of their malice aforethought, and with the specific intent to kill, did commit an assault with a deadly weapon, being a blunt instrument, a more particular description of which is to this grand jury unknown, and then and there held in the hand of said James Cunningham, and then and there the said James Cunningham did, with the specific intent to kill and murder as aforesaid the said James Cunningham Hepp, willfully, feloniously, premeditatedly, and of his malice aforethought, strike the said James Cunningham Hepp in and upon the body of him, the said James Cunningham Hepp, with said dangerous and deadly weapon, thereby willfully, feloniously, deliberately, premeditatedly, and of his malice aforethought, inflicting in and upon the body and head of the said James Cunningham Hepp mortal wounds, of which mortal wounds inflicted as aforesaid the said James Cunningham Hepp, in the county of Audubon and state of Iowa, then and there did die. And the grand jury aforesaid upon their oaths do say, present, and find that the said James Cunningham and Arthur Palmer then and there, in the manner and form aforesaid, willfully, feloniously, premeditatedly, and of their malice aforethought, did kill and murder the said James Cunningham Hepp, contrary to the statute in such case made and provided, and against the peace and dignity of the state of Iowa.” At the close of the evidence for the state a directed verdict of not guilty was asked on the ground that it was not shown that James Cunningham Hepp had ever lived or been killed. The same question was also presented by motion after verdict. We have, then, to consider the validity of this indictment as a support for the prosecution of defendant for killing a nameless infant. A bastard child has no name until it has acquired one by reputation or baptism. See cases collected in 3 Am. & Eng. Enc. Law, 890. At common law, in a proceeding like the one we have here, a conviction could not have been had on an indictment such as this. A misnomer of the party injured was fatal. Rosc. Cr. Ev. 131; Archb. Cr. Pl. 31. We turn, then, to the statute, to see what change has been effected in the common-law rule. Section 5286 of the Code is as follows: “When an offense involves the commission of or an attempt to commit injury to person or property, and is described in all other respects with sufficient certainty to identify the act, an erroneous allegation of the name of the person injured or attempted to be injured is not material.” Were the question an open one, some of us would construe this section to mean that an error in the name of the party injured is not material, when such person is otherwise described or pointed out in the indictment. There was no other description here made or attempted of the person killed, than by the name given. But the question is not a new one in this state. Discussion has been foreclosed by decisions of this court. We understand the rule to be that if an offense is charged in the indictment, and from facts in evidence the court is satisfied that defendant was not misled, this is enough to warrant the conclusion that the act intended to be charged was sufficiently described or indicated. We need not review all the cases in which this court has undertaken to construe section 5286. In some of them the question of its meaning was not involved, as in State v. Emeigh, 18 Iowa, 122, where it appears there was no misnomer, and State v. Ean, 90 Iowa, 534, 58 N. W. 898, where the allegation in the indictment was that the name of the woman with whom defendant was charged to have committed adultery was to the grand jury unknown. In some other cases the language of the indictment is not reported, and we are unable to say whether the injured person was identified other than by name. See State v. Windahl, 95 Iowa, 471, 64 N. W. 420;State v. Flynn, 42 Iowa, 164;State v. Carnagy, 106 Iowa, 483, 76 N. W. 805. In still another class of cases the facts stated, other than the name, tend to point out the injured person,--as, for instance, in State v. Hall, 97 Iowa, 400, 66 N. W. 725, the indictment charges a larceny of property in the possession of the receivers of the Union Pacific Railway; naming one of them as Oliver W. Mink, whose true name was Oliver W. Ames. It will be seen at a glance that the injured person is also described as one of the receivers of the railway. See, also, State v. Semotan, 85 Iowa, 57, 51 N. W. 1161;State v. Franks, 64 Iowa, 39, 19 N. W. 832;State v. Porter, 97 Iowa, 450, 66 N. W. 745;State v. Cunningham, 21 Iowa, 433. State v. Windahl, supra, may also be cited under this head, for there was evidence that the person injured was known to some people by the name given in the indictment. But we find other cases in which the indictment, in terms, does not describe the injured party save by name, and where it is held that extrinsic facts may be considered in order to determine whether the act charged was so specifically pointed out as not to mislead the defendant. When in the trial court this fact is so determined, we pass on appeal upon that as upon any other fact. In State v. Crawford, 66 Iowa, 318, 23 N. W. 684, the indictment charged an assault with intent to kill one Jesse Cameron. The true name of the party upon whom the assault was made was Jesse Walker Cannon. Defendant moved in arrest of judgment on the ground of this misnomer. After quoting the section in question, this court, speaking through Rothrock, J., said: “This provision of the statute would, of itself, seem to authorize the overruling of the motion in arrest of judgment upon this ground. There is no showing that the defendant was in any way misled by the misnomer. On the contrary, the record shows quite conclusively that the defendant was not in any way prejudiced by the mistake in the indictment. The facts are that he shot at Jesse Cannon with a revolver, and wounded him in the arm and back; was arrested, confined in jail, and had a preliminary examination; and it does not appear that he shot any other person at or about the time charged in the indictment.” In the case at bar, defendant had been arrested, had a preliminary examination, and knew that he was charged with the killing of this infant child. In State v. Carr, 43 Iowa, 418, the charge was the robbery of one John Shattick by taking of the property of “John Shattick from the person and against the will of said John Kopek.” As matter of fact, the name of the person robbed was neither Shattick nor Kopek, but Shoppick. The court instructed the jury that the mistake in the name was immaterial, unless they should find that defendants were misled thereby. This instruction was objected to, and we approved it. This is a direct holding that facts outside the indictment may be considered in determining whether the defendant understood the specific charge intended to be made. We are convinced that the defendant here was in no way misled by the misnomer, and he cannot, therefore, be permitted to take advantage of it.

2. It is strenuously claimed that the evidence does not support the verdict. The testimony established or tended to establish the following facts: Defendant and Ida Hepp reside in the northern part of Audubon county. They were unmarried, and had been keeping company together. As a result of illicit intercourse had, she became pregnant, and, being near her confinement in February, 1898, both she and defendant determined that she should seek some place to give birth to her child, where neither of them was known. On February 19th defendant appeared at a hotel in Atlantic, Cass county, and engaged lodging and board for himself and Ida Hepp; representing her as his wife. He told the landlord he was on his way with his wife to Nebraska, and he thought she was going to be sick. They were given accommodations, and on the 21st the child (a boy) was born. Cunningham did not register, but tried to keep his identity secret. The suspicion of the landlord was finally roused. He asked Cunningham to register, and, in the talk that ensued, the latter told his story. He said that they belonged to respectable families, and the girl's shame was almost killing her; that he had spent $47 in trying to get rid of the child. The child, when born, had a harelip, and an unnatural condition of the genital organs made circumcision necessary. This was performed. On March 5th Cunningham and the girl left on the train of the Rock Island Railway for Audubon, carrying the child wrapped in a shawl which he had purchased for the purpose. They reached Audubon at 8:45 a. m., intending to take a train on the Northwestern Railway for their homes, which left that morning at 10 a. m. On arriving in Audubon, Cunningham left the...