State v. Flower

• Decision Date: 21 April 1915
• Citation: 27 Idaho 223,147 P. 786
• Parties: STATE, Respondent, v. IDELL FLOWER, ED. LUKE and PHOEBE LUKE, Appellants
• Court: Idaho Supreme Court

147 P. 786

27 Idaho 223

STATE, Respondent, v. IDELL FLOWER, ED. LUKE and PHOEBE LUKE, Appellants

Supreme Court of Idaho

April 21, 1915

GRAND LARCENY-INFORMATION-SUFFICIENCY OF-STOLEN PROPERTY-WIFE'S POSSESSION OF-STATUTORY CONSTRUCTION.

1. An information may properly be divided into four parts: 1, the caption, 2, the inducement or commencement, 3, the charging part, and 4, the conclusion.

2. The most substantial part of the information is the charging part, and the charging part of every criminal information for grand larceny must not only name the person charged but it must state what was stolen by that particular person and where and when it was stolen, and if those things are not stated, the information is not sufficient to charge a public offense.

3. An information which in the caption contains the names of several persons all but one of which are thereafter contained in the charging part of the information, is not sufficient to charge the person with a crime whose name is thus omitted from the charging part.

4. Under the laws of this state, the domicile of the husband is presumed to be the domicile of the wife, and under the provisions of sec. 2675, Rev. Codes, the husband is the head of the family and may choose any reasonable place or mode of living, and the wife must conform thereto; and in case the husband commits the crime of grand larceny and takes the personal property stolen to his residence where his wife and family reside, it would take other and further evidence to convict the wife than the mere fact that such stolen property was found in the home where she resided with her husband.

5. The evidence held not sufficient to sustain the verdict of guilty against Idell Flower.

6. Held, that instructions Nos. 6 and 8 correctly state the law are not contradictory, and the court did not err in giving them.

7. Held, that the defendants Phoebe Luke and Idell Flower must be discharged and released from custody under the judgment entered by the trial court.

APPEAL from the District Court of the Seventh Judicial District, in and for Canyon County. Hon. Ed. L. Bryan, Judge.

The defendants were convicted of grand larceny and sentenced to the state penitentiary. Judgment reversed as to Idell Flower and Phoebe Luke.

Judgment affirmed as to defendant Ed. Luke and reversed as to Idell Flower and Phoebe Luke.

Scatterday & Van Duyn, for Appellants.

The caption neither takes from nor adds to the validity of an indictment. (Commonwealth v. Drewry, 126 Ky. 183 103 S.W. 226; Mitchell v. Commonwealth, 106 Ky. 602, 51 S.W. 17.)

In charging the offense, nothing is left to implication or intendment or to conclusion. (22 Cyc. 336, and authorities cited.)

An indictment or information must name the defendant whom it is intended to charge with the offense therein alleged, and an omission in this regard will make the indictment bad. (10 Cyc. Plead. & Prac. 504 (XI).)

The omission of a material averment in an indictment cannot be supplied by an instruction or by the proof or by the findings of the jury of the fact not alleged. (22 Cyc. 296.)

Where a specific act is to be made, by proof, the basis of a charge in a criminal case, that specific act must be alleged. ( Hoyt v. State, 50 Ga. 313; United States v. Martindale, 146 F. 289; State v. Laechelt, 18 N.D. 88, 118 N.W. 240; State v. Stowe, 132 Mo. 199, 33 S.W. 799; State v. McKinney, 130 Iowa 370, 106 N.W. 931.)

In Chamberlayne on Modern Evidence (sec. 1134, note), it is said that property found to be in the possession of the husband and wife will be taken to be in the possession of the husband.

J. H. Peterson, Atty. Genl., Herbert Wing, E. G. Davis and T. C. Coffin, Assts., for Respondent.

The state concedes the position of the defendant with regard to insufficiency of information as against Phoebe Luke to be well taken. This court, in the case of State v. Smith, 25 Idaho 541, 138 P. 1107, held that the facts and circumstances constituting the offense must be stated in ordinary concise language. The cases cited by the appellant are in point on this question, and we would particularly call attention to the case of State v. Stephens, 199 Mo. 261, 97 S.W. 860, and also to 10 Ency, Pleading and Practice, 476, 504.

The instruction upon the question of recently stolen property will be found to be in exact accord with the rulings of this court. (State v. Bogris, 26 Idaho 587, 144 P. 789.)

While marriage does not take from the wife her capacity to commit crime, it does cast upon her the duty of obedience to and affection for her husband, and the law therefore indulges in the presumption that if she commits an offense in his presence, it was the result of his constraint or coercion, and in the absence of proof to the contrary excuses her. ( State v. Miller, 162 Mo. 253, 85 Am. St. 498, 62 S.W. 692; State v. Ma Foo, 110 Mo. 7, 33, Am. St. 414, 19 S.W. 222; Bibb v. State, 94 Ala. 31, 31 Am. St. 88, 10 So. 506; State v. Harvey, 130 Iowa 394, 106 N.W. 938.)

Under the circumstances shown in this case, the possession of these articles of personal property by Mrs. Flower was properly to be considered by the jury as a circumstance against her, especially in view of the fact that there is circumstantial evidence tending to connect her with the commission of larceny and that at the time she was neither in the presence nor under the control of her husband.

SULLIVAN, C. J. Budge and Morgan, JJ., concur.

OPINION

SULLIVAN, C. J.

On the 17th of November, 1914, the prosecuting attorney of Canyon county filed an information against Idell Flower, Ed. Luke, Phoebe Luke, Frank Russell, George Russell, John Black and Theodore Black, charging them with the crime of grand larceny. The defendants were arraigned and plead not guilty. A trial was had and the jury found Idell Flower, Ed. Luke and Phoebe Luke guilty of the crime charged, and the other defendants were found not guilty. On December 4th, 1914, judgment was pronounced against the defendants found guilty, whereby Idell Flower and Phoebe Luke were each sentenced to imprisonment in the state penitentiary for a period of not less than three years and not more than fourteen years, and Ed. Luke was given a term of imprisonment for not less than five years and not more than fourteen years. A motion for a new trial was made and denied and this appeal is from the judgment and order denying a new trial.

Before proceeding to discuss and dispose of the errors assigned, we will set forth some of the facts shown by the record:

Ed. Luke and his wife, Phoebe Luke, resided on a farm owned by one Rowland, which farm was situated about two miles northeast of Wilder, in Canyon county, and with them lived two other of the defendants, John and Theodore Black, and one George Ash and his wife, the wife being the daughter of Mrs. Luke. The defendant Idell Flower was a sister of Mrs. Luke, and lived just out of the city limits of Emmett, in Canyon county. Mrs. Flower, during the summer of 1914, was living with her husband and her two sons, Frank and George Russell, who were also defendants in this action.

It appears that in the Black Canyon Irrigation District extending from above Emmett to near Caldwell, there were a number of homesteaders who had houses on their homesteads furnished with stoves, bedding and other personal property used for their convenience in residing on their homesteads, and during the summer and fall of 1914 many of these houses were looted and the furniture and other personal property was stolen. It was the custom of the homesteaders to close up their houses and leave them for perhaps weeks at a time, as they had a right to do under the homestead laws, and it was during their absence this looting occurred. A considerable amount of this stolen property was found in the possession of the defendants Luke and Flower at their residences, and on the trial of this...