State v. Jennings

• Decision Date: 10 February 1890
• Citation: 44 N.W. 799,79 Iowa 513
• Parties: STATE v. JENNINGS.
• Court: Iowa Supreme Court

79 Iowa 513

44 N.W. 799

STATE

v.JENNINGS.

Supreme Court of Iowa.

Feb. 10, 1890.

Appeal from district court, Page county; A. B. THORNELL, Judge.

Indictment for burglary.From a judgment on conviction the defendant appealed.Wm. P. Ferguson, for appellant.

John Y. Stone, Atty. Gen., and T. R. Stockton, Co. Atty., for the State.

GRANGER, J.

1.The charging part of the indictment is as follows: “That said defendants, on or about the 31st day of January, 1889, in said county, did, with force and violence, unlawfully, feloniously, and burglariously break and enter a certain store building of one W. N. Maloney, in the town of Essex, Page county, Iowa, in which store building goods, wares, and merchandise were kept for sale, use, and deposit by the said W. N. Maloney, with the felonious intent on the part of said Wm. Jennings and Edward Ray then and there to commit a public offense, to-wit, larceny, contrary to and in violation of law.”It is urged that the indictment is fatally defective because it “fails to state the kind or value or ownership of the goods which were the subject of the intended larceny.”The provisions of the statute under which the indictment was found is section 3894, and reads: “If any person, with intent to commit any public offense, * * * at any time break and enter * * * any buildings in which any goods, merchandise, or valuable things are kept for use, sale, or deposit, he shall be punished,” etc.The offense provided in the section is not a larceny, nor is the fact of a larceny necessary to the offense charged.The offense only involves an intent to commit a larceny.The offense charged is as complete if the breaking and entering is done with such intent as if the larceny is actually committed.It is not necessary to prove the fact of the larceny to secure a conviction, and hence the character of the property intended to be stolen, its value and ownership, are not material, and need not be alleged in an indictment for burglary.This view has support in State v. Newberry, 26 Iowa, 467.

2.The only other question in the case is as to the sufficiency of the evidence to connect the defendant with the commission of the offense.On the night of January 31, 1889, there were taken from the store of W. N. Maloney 10 revolvers, 22 razors, 220 pocket-knives, and some cartridges, in all of the value of about $145.It is unquestioned in the case that the store was on that night burglarized, and the property stolen.We look briefly to the facts tending to connect the defendant with the offense.If defendant is a guilty party, he was evidently in the commission of the offense, associated with one Ray.It appears that Ray is quite young, and Jennings larger and older.There are certain facts disclosed by the testimony which may be regarded as established.On the morning after the burglary, Ray sold to one Walker, at Bingham, a few miles from Maloney's store, a new knife.On the night of February 2d, two men, answering the description of Jennings and Ray, were discovered by a brakeman at Coin, Iowa, in a freight-car, purloining a ride.When asked by the brakeman to “put up something,” the older gave him a new pocketknife.This occurred about midnight.Early on the morning of February 3d, Jennings and Ray were seen asleep in the coal-house at Stanberry, Mo., and were seen there, off and on, during that day, which was Sunday, and they were together.Both Jennings and Ray were arrested, February 3d, on a charge of robbery committed at Gentryville, Mo., with two other parties.When arrested, Ray had on his person 3 new knives, and a cartridge-box.On the box was Maloney's cost-mark and selling price, in Maloney's handwriting.Jennings' arrest was a little time after that of Ray.On his person was 1 knife, and near by him, and where he had been, under the sill of the coal-house, were found 2 revolvers and 7 knives.About March 2, 1889, there was also found under a straw-pile at Stanberry, tied up in a piece of...