State v. Fogerty

• Decision Date: 07 April 1898
• Citation: 74 N.W. 754,105 Iowa 32
• Parties: STATE v. FOGERTY.
• Court: Iowa Supreme Court

105 Iowa 32

74 N.W. 754

STATE

v.FOGERTY.

Supreme Court of Iowa.

April 7, 1898.

Appeal from district court, Palo Alto county; W. B. Quarton, Judge.

The defendant was accused and convicted of the crime of larceny, and from judgment of imprisonment in the penitentiary he appeals. Affirmed.D. E. Collins, B. E. Kelly, and Parsons & Riniker, for appellant.

John Menzies, Co. Atty., Jesse A. Miller, and Milton Remley, Atty. Gen., for the State.

LADD, J.

On February 17, 1897, 1 band saw and frame, an emery stand shaft, 2 emery wheels, a machine punch, tire shaper, 5 sets of tires, some horseshoe iron, 50 packages of bolts, assorted bolts, 3 vises, 1 drill, 4 axle stubs, some belting, and 2 buggy poles were the property of, and stolen from a building of, the Skinner Manufacturing Company, in Emmetsburg. Foy was in charge of the building and property. The defendant was stopping with Jacob Stambach, at Ayrshire; and it is claimed he and John Stambach, a son of Jacob, went to Emmetsburg, stole the property, and placed it in Jacob's blacksmith shop. On the trial, John Stambach testified that he simply accompanied the defendant, with the understanding that it was his property, and that he was only assisting him in its removal to Ayrshire, and did not know that it was stolen until several days, while the defendant says he had nothing to do with obtaining the property from the building or shop at Emmetsburg; that he simply rode home with Stambach, and had no knowledge the goods were being stolen.

2. The indictment alleges that the building from which the property was taken, and also the property, belonged to the Skinner Manufacturing Company; and the defendant insists, by motion in arrest of judgment, that it is insufficient, in that it does not aver that the company is either a co-partnership or a corporation. In a civil proceeding, the capacity of a corporation or a partnership must be alleged. Code, § 3627; Byington v. Railroad Co., 11 Iowa, 502;Sweet v. Ervin, 54 Iowa, 102, 6 N. W. 156. An exception seems to exist where the charter of the corporation is by an act of legislature. Hard v. Decorah, 43 Iowa, 313. There is apparent conflict in the authorities as to whether it was necessary, at common law, to aver the capacity of a corporation in an indictment for stealing goods. See note to section 110 of Wharton's Criminal Pleading and Practice. That author says the question depends upon whether the court takes judicial notice of the charter. Where corporations are organized as in this state, judicial notice is not so taken, and capacity must be alleged when this is not obviated by statute. Thurmond v. State (Tex. App.) 17 S. W. 1098;McCowan v. State (Ark.) 22 S. W. 955;People v. Bogart, 36 Cal. 248;Wallace v. People, 63 Ill. 451;State v. Mead, 27 Vt. 722. The strict rules of the common law in regard to ownership have been modified by our Code, which provides that “when an offense involves the commission of or an attempt to commit an injury to a person or property, and is described in other respects with sufficient certainty to identify the act, an erroneous allegation as to the name of the person injured or attempted to be injured is not material.” Code, § 5286. Under this section an indictment for burglary need not allege the corporate capacity. State v. Watson (Iowa) 72 N. W. 283. A distinction is made in pleading this crime and that of larceny by the supreme court of California. See People v. Henry, 77 Cal. 445, 19 Pac. 830. In State v. Carr, 43 Iowa, 418, it was held, under an indictment for robbery, that, although the name of the person robbed was alleged to be John Kopek, the defendant might be convicted on proof that his name was John Shoppick, as this did not prejudice the defendant. In State v. Cunningham, 21 Iowa, 433, where an indictment charged that the property was taken from the person of George W. Archer, a conviction was supported by proof that it belonged to George W. and Thomas J. Archer, as partners, and it is there said: “While we would guard with jealous care every right of a party thus charged, we believe the spirit of the law is best maintained by looking to its substance, its object and purpose, than to defeat its operation by adhering with too great tenacity to old forms and technicalities,--forms and technicalities which, though ever so just and necessary in particular cases, operated not unfrequently to impair the force and vigor of the law, rather than promote certainty and efficiency in its administration.” Under a similar statute, the supreme court of Kentucky adjudged an indictment sufficient which laid the ownership of stolen property as that of the Tennessee River Packet Company, D. W. Swan, Little Bros., and others, without stating the names of the several owners. State v. Bell, 65 N. C. 313, is in point, and it is there said: “The name of the owner of the property stolen is not a material part of the offense charged in the indictment, and it is only required to identify the transaction, so that the defendant, by proper plea, may protect himself against another prosecution for the same offense. * * * The owner may have a name by reputation, and, if it proves that he is as well known by that name as any other, a charge in the indictment in that name will be sufficient.” The identical question is determined in State v. Grant (N. C.) 10 S. E. 554. If, under an allegation of ownership in an individual, proof thereof in a partnership will support a conviction, it may well follow that, under the charge of property in a partnership, proof that it belonged to a corporation of the same name would be sufficient. If the name is alleged with such certainty as to point out the owner, though omitting to mention whether a co-partnership or...