State v. Fogerty
| Decision Date | 07 April 1898 |
| Citation | 74 N.W. 754,105 Iowa 32 |
| Parties | STATE OF IOWA v. CON FOGERTY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Palo Alto District Court.--HON. 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.
Milton Remley, attorney general, John Menzies, County Attorney, and Jesse A. Miller, for the state.
On February 17, 1897, one band saw and frame, an emery stand and shaft, two emery wheels, a machine punch, tire shaper, five sets of tires, some heseshoe iron, fifty packages of bolts assorted bolts, three vises, one drill, four axle stubs, some belting, and two 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.
II. 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, section 3627; Byington v. Railroad Co., 11 Iowa 502; Sweet v. Ervin, 54 Iowa 101. 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, 30 Tex. Ct. App. 539 (17 S.W. 1098; McCowan v. State, 58 Ark. 17 (22 S.W. 955); People v. Bogart, 36 Cal. 245; 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, section 5286. Under this section an indictment for burglary need not allege the corporate capacity. State v. Watson, 102 Iowa 651, 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 P. 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. Cuningham, 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, rather 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 infrequently 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 identical question is determined in State v. Grant, 104 N.C. 908 (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 corporation, and the offense in other respects is definitely described, the owner may be shown to be either, as the defendant, with such a...
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