State v. Emmons

• Decision Date: 29 June 1887
• Citation: State v. Emmons, 72 Iowa 265, 33 N.W. 672 (Iowa 1887)
• Parties: STATE v. EMMONS. EMMONS v. WOODRUFF, SHERIFF. MANLEY v. MORGAN, SHERIFF.
• Court: Iowa Supreme Court

72 Iowa 265

33 N.W. 672

STATE

v.EMMONS.

EMMONS

v.WOODRUFF, SHERIFF.

MANLEY

v.MORGAN, SHERIFF.

Supreme Court of Iowa.

June 29, 1887.

Appeal from district court, Mahaska county.

As these causes involve substantially the same questions, they will be determined in one opinion.The first case is an appeal by the defendant from a judgment of conviction upon an indictment for burglary.The second cause is an original proceeding in habeas corpus in this court, in which it is claimed that the conviction for burglary is void.In the last-named case, the plaintiff, Manley, was convicted of the crime of larceny.After conviction, he sued out a writ of habeas corpus upon the alleged ground that the conviction was void.A hearing was had, and an order was made that the plaintiff be remanded to the custody of the defendant, who is sheriff.From this order plaintiff appeals.Bolton & McCoy and Liston McMillen, for Charles Emmons.

J. L. Brown and Charles Thomas, for Charles Manley.

A. J. Baker, Atty. Gen., and H. W. Gleason, for the State.

ROTHROCK, J.

1.In the first-named case the defendant demurred to the indictment.The demurrer was overruled.A motion in arrest of judgment was also made upon the same grounds, which motion was overruled.It is claimed that the rulings were erroneous.The charging part of the indictment is as follows: That “the said Charles Emmons, on the twenty-first day of December, in the year of our Lord one thousand eight hundred and eighty-six, in the county aforesaid, did feloniously, unlawfully, willfully, and burglariously break and enter a certain dwelling-house of another, the property of Oskaloosa College, a corporation duly organized under the laws of Iowa, with intent to commit a public offense, to-wit, the crime of larceny, by stealing, taking, and conveying away the personal property of M. J. Sumner then and there being.”This indictment is under section 3891 of the Code, which provides for the punishment of breaking and entering any dwelling-house in the night-time with intent to commit any public offense.The objections to the indictment, as set forth in the demurrer thereto, are as follows: “(1) The indictment does not show that in said building any goods, merchandise, or valuable things were kept for use, sale, or deposit; (2) the indictment does not show that the building was a dwelling-house; (3) the indictment shows that the building was not a dwelling-house; (4) the indictment shows that it was the house of the Oskaloosa College, a corporation, and a corporation cannot inhabit a dwelling-house, it being an incorporated body; (5) the indictment does not show who was inhabiting said alleged dwelling-house; (6) the indictment does not show who was the owner of the dwelling-house, nor that the name of the owner or party injured was unknown to the grand jury; (7) the indictment does not substantially conform to the requirements of the Code.”

A mere reading of most of these grounds of demurrer, in connection with the averments of the indictment, shows that the grounds of demurrer are not well taken in point of fact.It was not necessary, under the statute, that the indictment should show that goods, wares, and merchandise were kept for use, sale, or deposit in the building.It is claimed that the indictment is bad, because the ownership is laid in a corporation, and a corporation cannot inhabit a dwelling-house.It is not necessary that the indictment should set out the names of the dwellers in the house.At common law, the ownership of the building was required to be laid in the person in possession.Whart.Crim. Law, §§ 787,788,816.But an erroneous allegation in this respect is not material, under our Criminal Code, when the crime is in other respects described with sufficient certainty.Code, § 4302.In the case of State v. Franks,64 Iowa, 39, 19 N. W. Rep. 832, we held that an indictment for breaking and entering a house, the property of the estate of a deceased person, was not fatally defective; and in State v. Rivers,68 Iowa, 611, 27 N. W. Rep. 781, it was held that, where the building was described as the property of three persons who owned it as partners, proof that it was actually owned by two of them was sufficient.We think the indictment was not vulnerable to the objections urged.

2.Emmons was tried for the crime charged in the district court of Mahaska county.It appears from the record upon his appeal, and in his habeas corpus proceeding, that he was tried before Hon. DAVID RYAN, one of the judges of the district court for that district at the March term, 1887.It further appears that, at the time of the trial, Hon. J. K. JOHNSON and Hon. W. R. LEWIS, who are also district judges for said district, were each presiding as judges in the trial of causes in other rooms in the court-house in Mahaska county.The term was opened by Judge JOHNSON, who impaneled the grand jury which found the indictment, and who made the order overruling the demurrer to the indictment.After the term had been in progress for some time, Judge RYAN appeared; and, in pursuance of an order made by said judges, Judge RYAN took up the criminal calendar, and presided as judge, and at the same time Judge JOHNSON presided at the trial of civil causes.Whatever business was transacted by Judge LEWIS appears to have been done without any arrangement between the judges which was made of record.It is claimed by counsel for Emmons that his conviction was void, because Judge RYAN had no power or authority to exercise the functions of a judge in Mahaska county at the time of the trial.It is urged that two or more courts cannot be held at the same time in the same county, because section 5, art. 5, of the constitution, provides that “the district court shall consist of a single judge, who shall be elected by the qualified electors of the district in which he resides.”To determine the question as to the validity of this proceeding it is necessary that other provisions of the constitution be considered.

Section 10 of article 5 is as follows: “The state shall be divided into eleven judicial districts; and after the year eighteen hundred and sixty the general assembly may recognize the judicial districts, and increase or diminish the number of districts, or the number of judges of said court, and may increase the number of judges of the supreme court; but such increase or diminution shall not be more than one district or one judge of either court at any one session; and no...