State v. Dowden

• Decision Date: 10 March 1908
• Parties: STATE OF IOWA, Appellee v. VERNON DOWDEN, ALIAS THOMAS WOOD, Appellant
• Court: Iowa Supreme Court

115 N.W. 211

137 Iowa 573

STATE OF IOWA, Appellee v. VERNON DOWDEN, ALIAS THOMAS WOOD, Appellant

Supreme Court of Iowa, Des Moines

March 10, 1908

Appeal from Fayette District Court.-- HON. L. E. FELLOWS, Judge.

DEFENDANT was indicted for the crime of larceny, and was also charged with being an habitual criminal. Upon trial he was convicted and sentenced to the penitentiary for the term of thirty-five years. He appeals.-- Affirmed.

Affirmed.

C. H Rohrig, for appellant.

H. W Byers, Attorney General, and Chas. W. Lyon, Assistant Attorney General, for the State.

OPINION

DEEMER, J.

The indictment charges "that Vernon Dowden at and within said county on the 13th day of March, 1907, willfully fraudulently, by trick and artifice, and by false pretenses, with felonious intent on part of said defendant, Vernon Dowden, to steal and fraudulently convert the same to his own use, and deprive the owner thereof without his consent, did then and there in the manner aforesaid obtain from George Frey a certain mare, and did then and there in the manner aforesaid feloniously steal, take and carry away said mare, of the value of $ 65, of the property of George Frey, contrary to the statute in such case made and provided, and against the peace and dignity of the State of Iowa; that on the 7th day of December, 1895, a judgment was rendered against the defendant, Vernon Dowden, under and by the name of Mark Bending, in the district court of Hancock county, State of Iowa for the crime of arson, of which he was then and there convicted and sentenced to prison for the term of three and one-half years; that on the 24th day of January, 1899, another judgment was rendered against the defendant, Vernon Dowden, under and by the name Richard Bond Risley in the district court of Hancock county, Iowa for the crime of arson, of which he was then and there convicted and committed to prison for the term of ten years." Defendant moved the court to require the State to elect upon which count it would try him. This motion was overruled, and exception taken. The motion was bottomed upon the thought that the indictment charges both larceny and cheating by false pretenses. But this is not so. The charge is of larceny and not of cheating. The allegation as to trick, artifice and false pretense was to show the means whereby defendant obtained the possession of the property, and not to charge an independent crime. State v. Finnegean, 127 Iowa 286, 103 N.W. 155.

II. Next it is argued that the indictment is insufficient under the habitual criminal act, because it does not charge that defendant was committed to a prison in this or in any other State. The act in question provides for an increase of punishment in the event the defendant has been twice convicted, sentenced, and committed to prison in this or any other State or in the United States. See Code, Supp. 1902, section 5091a. It is not necessary that the indictment charge where the prison was in which defendant was committed; but if this were true we think it sufficiently appears from the charge that defendant was committed to prison in this State.

III. Contention is made that section 5091b of the Code Supplement of 1902 making an authenticated copy of the former judgment and commitment competent and prima facie evidence of such former judgment and commitment is unconstitutional and void, because ex post facto in its operation; that is to say, this act, having been passed since the former convictions were had, changes the burden of proof, and is therefore unconstitutional....