State v. Fortune
| Decision Date | 20 November 1923 |
| Docket Number | 34922 |
| Parties | STATE OF IOWA, Appellee, v. ROY FORTUNE, Appellant |
| Court | Iowa Supreme Court |
Appeal from Wright District Court.--G. D. THOMPSON, Judge.
DEFENDANT was indicted, tried and convicted of the crime of breaking and entering. Judgment was entered committing him to the county jail of Wright County, Iowa, for a period of ten months. Defendant appeals.
Affirmed.
Martin & Alexander, for appellant.
Ben J Gibson, Attorney General, Maxwell A. O'Brien, Assistant Attorney-general, J. A. Rogers, and J. M. Jenson, County Attorney, for appellee.
DE GRAFF, J.
The defendant was indicted by the grand jury, of Wright County Iowa, for the crime of breaking and entering. Prior to the instant indictment it appears that the defendant with others had been indicted for the same offense. On motion of the county attorney these indictments were dismissed on the ground that the grand jury lists and panel were not selected and drawn as required by statute. Upon the hearing on the objections the court sustained the motion, dismissed the indictments and ordered the charge against the defendant to be resubmitted to the grand jury at the next term of court. Of this appellant complains, but there is no merit in this assignment of error. The indictment was returned within the statutory period of limitation and the statute is a sufficient authority for a resubmission. Sections 5319, 5324 and 5326, Code 1897. State v. Bige, 195 Iowa 1342, 193 N.W. 17; State v. Fortune, 196 Iowa 884, 194 N.W. 65.
It is contended that certain instructions given by the court to the jury are erroneous. As the trial evidence is not properly before us, we will indulge a presumption in favor of the correctness of the instructions in their relation to the evidence produced upon the trial. State v. Ayers, 163 Iowa 631, 145 N.W. 276; State v. Owens, 109 Iowa 143, 80 N.W. 226; State v. Frutiger, 167 Iowa 550, 149 N.W. 634. We will, however, specifically note the legal objections lodged by appellant against the instructions.
Ownership of the building in question is an essential ingredient of the crime charged. The indictment alleged that the store building broken and entered was "then and there the property of George H. Wheeler," and that the goods, wares and merchandise therein "were kept for sale, used, and deposited by the said George H. Wheeler." The indictment was read into the court's instructions and it is the accepted rule that it is not necessary to specifically instruct on matters admitted or established beyond dispute. We will not presume prejudice. State v. Sparegrove, 134 Iowa 599, 112 N.W. 83. There can be no question that the jury understood that before a conviction was justified it must find the fact of ownership as alleged in the indictment.
Did the court correctly instruct on the subject of good character as a defense? The jury was told that if the evidence introduced by the defendant as to his good character and the presumptions as to good character, when considered with all the other facts and circumstances disclosed by the evidence, "creates in your minds a reasonable doubt as to his guilt, you should return a verdict of not guilty." This is a statement of correct legal principle and was approved in State v. Fortune, 196 Iowa 884, 194 N.W. 65. See also State v. O'Callaghan, 157 Iowa 545, 138 N.W. 402.
It is contended that the court erred in failing to instruct on an alleged confession of the defendant in that the jury was not told that "the confession alone is not sufficient to convict, but must be corroborated by other evidence." Section 5491, Code 1897. This assignment is predicated on the assumption that the defendant made a confession of the crime charged. There was no confession. Exhibit 18 introduced in evidence is a mere admission or declaration of the defendant that he with others "robbed the George Wheeler store" and that "we took about forty-five leather vests, eight wool blankets, twenty-five neckties, three pair of shoes, four pillows, two sweaters, and some jewelry." A confession of guilt is an admission of the criminal act itself, and not an admission of facts or circumstances from which guilt may be inferred. State v. Cook, 188 Iowa 655, 176 N.W. 674; State v. Skaggs, 153 Iowa 381, 133 N.W. 779.
Lastly it is claimed that the...
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