State v. Henderson, 41139.

• Decision Date: 24 June 1932
• Docket Number: No. 41139.,41139.
• Citation: 243 N.W. 289,215 Iowa 276
• Parties: STATE v. HENDERSON.
• Court: Iowa Supreme Court

215 Iowa 276

243 N.W. 289

STATE

v.HENDERSON.

No. 41139.

Supreme Court of Iowa.

June 24, 1932.

Appeal from District Court, Cass County; K. R. Cook, Judge.

The defendant was indicted, tried and convicted of the crime of larceny from a building in the nighttime and sentenced accordingly. He appeals.

Affirmed.

Superseding opinion, 239 N. W. 588.

G. C. Dalton, of Atlantic, for appellant.

John Fletcher, Atty. Gen., and Neill Garrett, Asst. Atty. Gen., for the State.

ALBERT, J.

This case was originally submitted at the September, 1931, term of this court, and an opinion filed thereon on December 16, 1931, which opinion appears in 239 N. W. 588. Later, in March, 1932, an order was entered in this court withdrawing said opinion and setting aside the submission, ordering the case resubmitted, and reserving to either party the question of the jurisdiction of this court to reconsider said cause. Following this, the state amended its abstract by striking out and substituting in place thereof an indictment charging larceny from a building in the nighttime.

The first complaint made is a charge that the district court had changed the record while the case was in this court and in so doing it had no jurisdiction. The record, as it now stands in this court, does not contain anything showing that the lower court in any way disturbed or changed the record at any time; hence we give no further attention to this proposition.

[1] A motion was filed by the defendant to strike the amendment to the abstract which was filed by the state, and reliance is placed upon our decisions which hold that, after a rehearing is granted in a case, the abstract cannot be amended. This doctrine has no application to the status of the present case. There was no rehearing granted, but the court withdrew the opinion and ordered the case resubmitted. Under such circumstances, the case stands as though it had never been submitted, and either party had a right to amend its abstract in any particular necessary to a fair presentation of the case.

[2][3][4] It is argued that, after the opinion was filed in December and sixty days had expired for the filing of a petition for rehearing, this court had no jurisdiction to make the order above referred to. To this contention we cannot accede. The bar and the courts of this state have uniformly referred to the order which goes from this court to the district court to proceed with the trial of a cause as a “procedendo,” and we have recognized this term in the rules of this court, although the word appears at no place in the Code of Iowa. There can be no question that the jurisdiction of this court continues until it is divested by the sending of a procedendo to the lower court. There is one exception to this rule, and that is where the case is redocketed in the lower court of which all parties have notice, and the proceedings are then continued in the lower court. Under such circumstances, we have held that by appearance the parties consent to the jurisdiction of the lower court, and thereby waive the filing of a procedendo. This rule was first announced in State v. Knouse, 33 Iowa, 365. See, also, Becker v. Becker, 50 Iowa, 139;Hogle v. Smith, 136 Iowa, 32, 113 N. W. 556.

The defendant raises his contention in this respect largely on State v. Banning, 205 Iowa, 826, 218 N. W. 572, 574. It is therein said that “for ordinary purposes the jurisdiction of this court ends with its decision and the expiration of time allowed for petition for rehearing, and that the lower court thereupon resumes jurisdiction to proceed with the cause, even though no procedendo has been sent down or copy of the opinion transmitted. Though the defendant is entitled by the statute to have them, he is not entitled to assert that, merely because of their absence, jurisdiction still remains in this court, and has not been transmitted to the trial court.”

It will be noticed that, in the Banning Case, the lower court had resumed jurisdiction, and therefore it comes within the rule announced in the Knouse Case, supra, and subsequent cases. Further than this, nothing could be claimed for the Banning Case if it were even stronger in its statement than it is, because what was there said was purely dictum; the fact statement showing that procedendo had gone down and was filed in the lower court at the time the question was there raised. We hold, therefore, that this court had not lost jurisdiction of the case, and had power to enter the order which we did at the time it was entered.

[5][6] It is next urged that there is a variance between the pleadings and the proof, and also that the indictment is defective in its allegations of ownership of the property. The evidence in the case shows that this property was owned by Grace McCaustland and was used in connection with a garage known as the “McCaustland Garage,” and C. W. McCaustland, her husband, was the manager and in control thereof.

Under these facts it is insisted that there is a variance between the indictment and the proof. The gist of the crime under the charge of larceny from a building in the nighttime is the taking of property from a building in the nighttime. The ownership of such property is not a controlling factor in the crime. We said in State v. Stanley, 48 Iowa, 221, where the indictment charged the defendant with stealing two horses, the property of W. W. Westbrook, of the value of $200 each, that “it is objected there was no evidence showing that the horses were the property of Westbrook. There was, however, evidence showing that the horses were in the possession of Westbrook, and being so, they were stolen. This is sufficient.”

As heretofore explained, the title to the property in the instant case was in Grace McCaustland, and C. W. McCaustland was the manager in charge of and running the business. We think, under the Stanley Case, this is sufficient and does not raise a variance such as is material. Further than this, the very question here discussed is covered by section 13732-c11 of the Code of 1931.

[7] It is next argued that chapter 266 of the Acts of the 43 G. A., now appearing as chapter 638, Code 1931, is unconstitutional because it does not fully apprise the defendant of the offense of which he is attempted to be charged. This objection, of course, is untenable because section 13732-c4 of the present Code specifically provides that, if the same fails to inform the defendant of the offense sufficiently to enable him to prepare his defense, or to give him such information as he is entitled to under the Constitution of this state, the court may, of its own motion, and shall, at the request of the defendant, order the county attorney to furnish a bill of particulars containing such information as may be necessary for these purposes, or the county attorney may of his own motion furnish such bill of particulars.

The defendant was therefore fully protected in this respect, and the law is not subject to the criticism that the same is a violation of the Constitution.

[8] It is further claimed that the law is unconstitutional...