State v. Dale
| Decision Date | 17 January 1900 |
| Parties | STATE OF IOWA, Appellant, v. CHARLES A. DALE |
| Court | Iowa Supreme Court |
Appeal from Butler District Court.--HON. JOHN C. SHERWIN, Judge.
DEFENDANT was indicted for the crime of being a common thief. He demurred to the indictment, and his demurrer was sustained. The state appeals.
Affirmed.
Milton Remley, Attorney General, and Geo. A. McIntyre for the State.
No appearance for appellee.
DEEMER J. SHERWIN, J., taking no part. GRANGER, C. J., not sitting.
The indictment was evidently found under section 2 of chapter 109 of the Acts of the Twenty-seventh General Assembly, which reads as follows: "Any person over the age of eighteen years who has been three times convicted of larceny where the value of the property stolen did not exceed twenty dollars upon being convicted the fourth time of said offense shall be imprisoned in the penitentiary not exceeding three years provided such former judgments shall be referred to in the indictment, stating the court, date and place of rendition." It charges the defendant with the crime of petit larceny, alleged to have been committed on the fifteenth day of May, 1898, by taking and carrying away one rope, of the value of $ 1.50. It also charges that the defendant was convicted of petit larceny before a justice of the peace on three separate occasions, to-wit, June 21, 1898, June 21, 1898, and November 25, 1898. This indictment was returned July 14, 1899. The demurrer was on the grounds: First, that the convictions were all subsequent to the alleged offense; and, second, that the court had no jurisdiction of the offense charged, as it is simply a misdemeanor, triable before a justice of the peace on information. One of the questions is, must the offense charged, in order to be indictable, be committed after prior convictions for petit larceny, or is it enough that there have been three convictions prior to the finding of the indictment? Had the indictment been found under section 4846 of the Code, there would be no doubt of the correctness of the court's ruling, for that section expressly recognizes that the third offense therein referred to is one committed after two antecedent convictions. But the statute under consideration does not so provide. It says that any person three times convicted shall, on being convicted the fourth time, be imprisoned, etc., and states what the indictment shall contain; i. e. "such former judgments shall be referred to in the indictment, stating the court, date and place of rendition." Having set forth in the indictment all that the statute requires, it was not vulnerable to attack on the first ground set forth in the demurrer. What the rule would be after proofs were adduced, we have no occasion to determine. Under the indictment the state was at liberty to show that the offenses of which the defendant had been convicted were committed prior to the one charged in the indictment, and, if that were necessary, would be entitled to a verdict of guilty. The statute does not, in terms, require that the convictions should antedate the offense charged. They must, of course, precede the finding of the indictment, and defendant's conviction under the indictment must be the fourth one; but there is no express requirement that the convictions antedate the commission of the offense charged, as in section 4846 of the Code. What reason is there for adding something to the language of the statute? The punishment, it seems, is for the fourth conviction, without reference to the order of time of the commission of the acts, except that the convictions must precede the finding of the indictment. From a reading of the whole chapter in which this section is found, it is clear that it was not the intention of the legislature that the previous convictions should antedate the commission of the fourth offense; for, in referring to other offenses than larceny, it expressly says that the subsequent conviction shall be for a crime committed after a certain number of prior convictions. In referring to larceny, however, this provision is omitted, and we think this must have been purposely done. The theory of warning convictions does not seem to have found lodgment in the legislative mind in fixing the nature of the offense charged, and, as the statute expressly states what the indictment must contain, a presentment following the language of the statute as to prior convictions should be held sufficient.
II. The other question in the case is: "Had the district court jurisdiction of...
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