State v. Franks
| Citation | 19 N.W. 832,64 Iowa 39 |
| Parties | THE STATE v. FRANKS ET AL |
| Decision Date | 07 June 1884 |
| Court | United States State Supreme Court of Iowa |
Appeal from Washington District Court.
THE defendants were tried and convicted of the crime of breaking and entering a dwelling house in the night time, in which goods, merchandise and valuable things were kept for use sale and deposit, with the intent to steal and carry away property therein kept. There was a trial, which resulted in the conviction of all of the defendants, and they appeal.
AFFIRMED.
E. W Stone, for appellant.
Smith McPherson, Attorney-general, for the State.
I. The indictment upon which the trial was had is as follows "The grand jury of the county of Washington, in the name and by the authority of the state of Iowa, accuse William Franks, James Hall and Frank Fitzgerald of the crime of burglary, committed as follows: The said William Franks, James Hall and Frank Fitzgerald on the first day of November, in the year of our Lord one thousand, eight hundred and eighty-three, in the county and state aforesaid, at about the hour of two o'clock in the morning, and in the night time of said day, with force and arms, did unlawfully, feloniously and burglariously break and enter a certain dwelling house belonging to and the property of the estate of W. F. Rodman, deceased,--said dwelling house being a building in which goods, merchandise and valuable things were kept for use, sale and deposit by the surviving widow and children--heirs-at-law--of said W. F. Rodman, deceased, with the felonious intent by the said William Franks, James Hall and Frank Fitzgerald then and there feloniously to take, steal and carry away the property of the said widow and children, heirs-at-law of said W. F. Rodman, deceased, and then and there to commit a public offense, to-wit, larceny, contrary to and in violation of law.
In a motion for a new trial and in arrest of judgment, the defendants claimed that the indictment was bad for duplicity; and that objection is now urged upon our attention. It is insisted that two crimes are charged in the indictment,--one being the crime of burglary, as defined in section 3891 of the Code, and the other the crime of breaking and entering, as defined in section 3894 of the Code. These two sections of the statute, so far as they provide a punishment for breaking and entering dwelling houses in the night time with intent to commit a public offense, are quite similar, and, without the use of some of the qualifying words in section 3894, an indictment under that section would be but little, if any, different in language from an indictment under section 3891. But in this case the pleader unmistakably designates the crime as that provided for in section 3894, by describing the house as a place "in which goods were kept for use, sale and deposit." This language is peculiar to section 3894, and the words unmistakably indicate that the indictment is under that section, and, in order to hold it to be an indictment under the other section, it is necessary to reject these words as surplusage. We think it very plain that this objection to the indictment is not well taken.
II. It is further claimed that the indictment is insufficient because it fails to charge whose dwelling house was broken and entered. It will be observed that it is charged in the indictment that the house was the property of the estate of W. F. Rodman, deceased, and that his surviving widow and children, being his heirs-at-law, kept goods and valuable things therein, and that the intent of the...
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