State v. Fisher

• Decision Date: 14 December 1898
• Parties: STATE v. FISHER ET AL.
• Court: Iowa Supreme Court

106 Iowa 658

77 N.W. 456

STATE

v.FISHER ET AL.

Supreme Court of Iowa.

Dec. 14, 1898.

Appeal from district court, Woodbury county; F. R. Gaynor, Judge.

The defendants were jointly indicted for the crime of larceny of $22.50 in money from the person of John Cullinan. The defendant John Fisher pleaded not guilty, and was separately tried, convicted, and judgment of imprisonment in the penitentiary for two years and for costs rendered against him, from which he appeals. Affirmed.T. F. Bevington, for appellant.

Milton Remley and J. W. Hallam, for the State.

GIVEN, J.

1. The testimony on behalf of the state tends to show that John Cullinan, aged 21 years, and with little experience in the ways of city life, left his home, on a farm near Independence, Iowa, for Cripple Creek, Colo., where he had brothers in business, having a passage ticket as far as Sioux City. At Ft. Dodge, defendant, a stranger to Cullinan, came on the train, and approached Cullinan. They became acquainted, and rode together to Sioux City, where they arrived early in the morning. During the ride, defendant learned by inquiries where Cullinan was going, and that he was only ticketed to Sioux City, whereupon he informed Cullinan that he could take him to a broker in the city, where he could buy a ticket at a discount of 20 cents on the dollar. On arriving at Sioux City, where Cullinan was a stranger, defendant took him to a saloon, then to the broker's office, which was not open, and then to a gambling house. Cullinan testifies that, while in the gambling room, defendant introduced him to his brother, Tom Fisher. “Then he asked me if I had change for a quarter, or if I would loan him a quarter. I put my hand in my pocketbook, and, as I did so, he snatched it. I did not give him the pocketbook with the money in it. He walked over to the table, turned the pocketbook upside down, and stuck the $20 bill in his pocket. $2.50 dropped out. I think it was $22.50 altogether,--a $20 bill and $2.50 in silver. He put the $20 bill in his pants pocket. I told him to give me back my money. He said not to make a damn fool of myself, and I would get my money all right. He put the $2.50 on the 36, I think. I don't know whether he won or lost. I don't know whether the money changed hands. Then he went into the back room, and these other fellows, Tom Fisher and George Meyers, followed him. They were there when we went up. I followed them back, and told them I wanted my money. He said, ‘We will go and see about that ticket right away.’ He came out, and went down the street. I did not do any playing up there. He said, when we got to this saloon, he would pay me that money. When we got down there, I asked him for it, and he said: ‘Don't make such a fool of yourself. Come and have a drink with me.’ I told him all I wanted was my money, and I said, ‘If you don't give it to me, there will be some fun.’ Just then Tom Fisher and Meyers came in. Tom put his hand in his pocket, pulled out his knife, and said, ‘I will cut your damn throat.’ The knife was open. I stepped around the stove, and, as I did so, they came at me. John Fisher hit me over the eye, and Meyers hit me on the breast. Tom hit me on the nose. There is a scar there now. Then John Fisher and Meyers went out. I followed them. They went into an alley, and said, if I would come back, they would give me the money. I went back, and they went up to this back room again, in the same building. I followed them. They tried to bolt the door. I shoved it in. Just then Policeman Olson came. He arrested Tom Fisher. John Fisher and Meyers went out. I guess Meyers was arrested in a gambling house. The total amount the defendant took from me was $22.75. They never paid me back, nor offered to. This money was taken from me here in Sioux City.” The testimony of the defendant shows that he was a young man of 21, engagedin working around saloons and gambling houses, and is substantially the same as that of Cullinan as to what was said and done prior to going into the gambling house, except as to Cullinan's drinking. Tom Fisher, George Meyers, and Harry Baker were present when Cullinan and defendant came into the gambling room. Defendant says he got to playing, and lost what money he had; that Meyers handed him some money to play; that he won, and gave Meyers his half. “Next, I got some money from John Cullinan, and played the wheel. I got $22.50 from him. He said he would divide the money he won. The table played on was about the same size as the table here. The dealer was standing behind the table, right in the middle. I was standing at the south end of the table, and Cullinan at the corner. We were standing at each corner at the end of the table when he took out his pocketbook. The table is about two and a half or three feet wide. When he handed me his pocketbook, I emptied the money out on the table in front of me, and handed the pocketbook back to him. He put it back in his pocket. I played roulette with the money. Cullinan stood all of this time at the end of the table. The proprietor of the gambling house was there, and four or five others. Cullinan made no objection to my playing this money, not a word. I won $16 there. Then we had a few drinks, and then went down to the ticket man,--to Hattenbach's. Cullinan did not go into the back room where I was, and ask for the money, as he testified. I had no conversation with him back there. When we went down to Hattenbach's to get the ticket, they were not open. We then went down to Orton's saloon. We had some drinks in there, and I offered him half of this money, and he would not take it. He wanted it all. He offered me $5 for winning. We were all drinking whisky there,--Cullinan with us. We were all somewhat intoxicated there at that time. I noticed Cullinan in a sort of drunken stupor. I offered him his money there at that time, and part of the winnings.” Defendant testifies that, “after the row came up I left the money there for Cullinan with Ed Burk. It was afterwards turned over to Billy Nead, and then I turned it over to Mr. Foley.” Harry Burk testified that he was an employé at the gambling room. “I seen him [defendant] put his hand out, and get some money from this gentleman [Cullinan]. I am pretty sure it was a pocketbook. He then put some silver in the center column. No, sir; I am positive there was no grabbing or snatching of the pocketbook from any one in my presence. There was no complaint there before me. If any was made, I would have heard it.” He further says: “Didn't see any $20 bill. He did not change any $20 bill with me. Yes; Fisher won some money there. I thought it was in the neighborhood of $15 to $18.” E. L. Burk, bartender at Orton's saloon, testifies that defendant left money with him in a sealed envelope for Cullinan; that he offered it to Cullinan, and he refused to accept it. There is a conflict in the evidence as to whether Cullinan was drinking and drunk. Defendant says: “He drank nine or ten glasses of whisky and one glass of beer;” while Cullinan says he did not drink any, and several disinterested persons say that Cullinan was not intoxicated. We have stated sufficient of the testimony to show what the claims of the parties are, and somewhat as to the merits of those claims.

2. Of the 19 assignments of error, all except 4 relate to rulings on evidence. The contention is that defendant was entitled to introduce evidence in support of his theory of defense, and it is complained that he was prevented from going into a full explanation in reference thereto. The defense is that defendant did not snatch the money from Cullinan; that he did not take it feloniously, but with Cullinan's consent. We have read the evidence with care, and do not find a single instance wherein the defendant was denied the right to evidence that tended to support his defense. He and his witnesses were permitted to testify, without objection, to all that took place in the gambling room, and as to the manner in which the money came into the possession of the defendant. The rulings objected to relate to matters occurring after the alleged larceny, that were immaterial or not proper cross-examination.

3. Defendant's next complaint is that “there is not an instruction along the line of the defendant's theory of defense.” The court plainly instructed that, to convict, the jury must find, beyond a reasonable doubt, that defendant did take the money of John Cullinan unlawfully and feloniously, with the intent then and there to convert the same to his own use, and permanently deprive the said John Cullinan of said money without the consent and against the will of the said John Cullinan. There was no error in the instruction in the respect complained of.

4. Among the grounds for a new trial it is alleged that the indictment does not plainly conform to the requirements of the Code, “because the offense charged is not stated in ordinary, concise language, and in such manner as to enable a person of common understanding to know what is intended, and the court to pronounce judgment upon the indictment according to the law of the case.” It is contended in support of this allegation that there is not a sufficient description in the indictment of the money alleged to have been stolen, nor an averment that a more particular description was to the grand jurors unknown. The indictment charges the stealing of “$22.50 in lawful money of the United States, of the value of $22.50.” Defendant's counsel cite a large number of authorities to show what the common-law rule is as to the description that must be given of the money stolen, and the states in which this rule is applied. Some of these hold that the particular kind of money must be stated,--that is, whether coin or paper, and the kind of coin and paper, but not a description of each particular coin or bill; while others hold that coins or bills should be individualized by the number of pieces or bills, and their respective...