State v. Jelinek

• Decision Date: 04 October 1895
• Citation: 95 Iowa 420,64 N.W. 259
• Parties: STATE v. JELINEK.
• Court: Iowa Supreme Court

95 Iowa 420

64 N.W. 259

STATE

v.JELINEK.

Supreme Court of Iowa.

Oct. 4, 1895.

Appeal from district court, Benton county; John R. Caldwell, Judge.

The defendant was indicted for breaking into a store building; was convicted, and sentenced to the penitentiary for the term of 2 1/2 years, and appeals. Affirmed.T. H. Milner, for appellant.

Milton Remley, Atty. Gen., for the State.

KINNE, J.

1. Appellant contends that the ownership of the building which was broken into was not proven as laid. The property is thus described in the indictment: “A certain store, known as the ‘Grange Store,’ at Belle Plaine, Iowa, of W. A. Parris, Geo. Straben, W. Ealy, _____ Ealy, Dave Rosterson, H. W. Vandike, J. P. Vandike, and S. P. Vandike, Wm. Dixon, and the minor heirs of H. Guinn, in which goods, wares, and merchandise were kept for sale, use, and deposit.” The evidence showed that the building broken into was known as the “Grange Store.” One witness testified on direct examination that the Grange Store was a stock company, and belonged to the parties named in the indictment. On cross-examination he said he thought it was incorporated, and the incorporators were the parties named. Our statute provides that an indictment is sufficient if it can be understood therefrom “that the act or omission charged as the offense, is stated with such a degree of certainty, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended, and the court to pronounce judgment upon a conviction according to the law of the case.” “That when material, the name of the person injured, or attempted to be injured, be set forth when known to the grand jury, or if not known to it, that it be so stated in the indictment.” Code, § 4305. It is true that we held in State v. Morrissey, 22 Iowa, 158, that the name of the owner of the building, if known, should be stated in the indictment. That was a case where the name of the owner of the building was not given. The object of the statute requiring the name of the owner to be stated is to fix the identity of the particular building broken into, and such is the thought of the opinion in the case cited. This is necessary, that the defendant may know with reasonable certainty the charge that is made against him. The statute provides, “When an offense involves the commission of, or an attempt to commit, an injury to 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 involved, or attempted to be injured, is not material. Code, § 4302. In State v. Carr, 43 Iowa, 418, it was held that a mistake in the name of the person injured, in an indictment for robbery, is not material, unless it is shown that the accused has been prejudiced thereby. In State v. Golden, 49 Iowa, 51, the indictment charged the building broken into to be the property of George F. Howe. The evidence showed that Howe was a...