State v. Kiefer

• Decision Date: 17 March 1915
• Docket Number: No. 30081.,30081.
• Citation: 172 Iowa 306,151 N.W. 440
• Parties: STATE v. KIEFER.
• Court: Iowa Supreme Court

172 Iowa 306

151 N.W. 440

STATE

v.KIEFER.

No. 30081.

Supreme Court of Iowa.

March 17, 1915.

Appeal from District Court, Buchanan County; C. W. Mullan, Judge.

The defendant was convicted of the crime of cheating by false pretenses, and appeals. Reversed.M. A. Smith and Chappell & Todd, all of Independence, for appellant.

George Cosson, Atty. Gen., R. J. O'Brien, Co. Atty., Hasner & Hasner, all of Independence, and Wiley S. Rankin, Special Counsel, of Des Moines, for the State.

LADD, J.

[1][2][3] The accused is charged in the indictment with having obtained a promissory note of $700, bearing date February 15, 1913, and due six months after date, executed by S. B. Stoner to the defendant, and $700 in money, by false pretenses. The ownership of this property is not alleged, save by implication, and, as an indictment cannot be aided by intendment (State v. Ashpole, 127 Iowa, 680, 104 N. W. 281), and ownership must be averred (State v. Clark, 141 Iowa, 297, 119 N. W. 719), the county attorney filed an amendment adding the following:

“That the money and notes delivered to the said defendant, Adam Kiefer, on or about February 28, 1913, as therein stated, was at the time of the delivery by said D. B. Stoner to said defendant, Adam Kiefer, the property of said D. B. Stoner.”

This was essential to the full description or identification of the offense, but not to the substance thereof. The crime would be none the less such were the owner not alleged or ascertained. The purpose of such an allegation is to point out the precise offense in order: (1) That the accused may be advised of the particular charge he must be prepared to meet; and (2) that he may thereafter be in a situation to plead the judgment of conviction or acquittal therein in bar to any subsequent prosecution. Section 5289, Code Supplement, as amended by Acts 33d Gen. Assem. c. 227, expressly authorizes the county attorney to amend the indictment so as to correct errors “in the allegations concerning the ownership of property that may be described in the indictment,” and, as such an amendment relates to matter of form, and not of substance, the court did not err in permitting the county attorney to supply the omission of averring that D. B. Stoner was owner of the property in an amendment to the indictment. See State v. Mullen, 151 Iowa, 392, 131 N. W. 679, Ann. Cas. 1913A, 399, and State v. Foxton, 147 N. W. 347, 52 L. R. A. (N. S.) 919.

[4] II. Notice that the evidence of witnesses other than those whose names were indorsed on the back of the indictment was served on the defendant in Black Hawk county, and counsel contend that this was not in compliance with section 5373, Code Supp., for that, as the indictment was pending in Buchanan county, in his absence notice must have been served on his attorneys. That section provides that:

“The county attorney, in offering the evidence in support of the indictment in the order prescribed in last section, shall not be permitted to introduce any witness who was not examined before a committing magistrate or the grand jury, and the minutes of whose testimony were not presented with the indictment to the court, unless he shall have given to the defendant or his attorney of record if the defendant be not found within the county a notice in writing, stating the name, place of residence and occupation of such witness, and the substance of what he expects to prove by him on the trial at least four days before the commencement of such trial.”

The limitation applies to the attorney of record only; that is, he may be served only when defendant cannot be found in the county, but the defendant may be served anywhere. In order to hold as contended, it would be necessary to read into the statute after the word “defendant” the phrase “when found in the county.” This is not to be implied from the language employed, as the court rightly held in ruling that the service of the notice was sufficient.

[5] III. The note alleged to have been obtained by false pretenses was described in the indictment as having been given by D. B. Stoner. The note introduced in evidence over objection bore the name of Stella Stoner also as maker, and on this ground the defendant argues that there was a fatal variance between the allegations and the proof. If the variance is to be regarded as material, the conclusion necessarily follows that it was fatal. On the other hand, if the description is sufficiently full and definite to identify the transaction and inform the accused of the precise charge against him, a mere technicalinaccuracy will not be permitted to defeat the prosecution. People v. Reed, 70 Cal. 529, 11 Pac. 676, is directly in point in declaring that such a variance is fatal, the court saying:

“The indictment or information should set out with reasonable certainty the pretenses and fraudulent representations by which the party injured was defrauded of his property, and such specific description of the property obtained as will identify it, and give to the defendant notice of what he is required to meet. And between the allegations thus made and the proofs there should be such a correspondence that, when the latter are adduced, it can be said that the former are substantially established. In the present case there was a wide departure from the necessary correspondence between the allegata and probata. The proofs established another offense, separate and distinct from that charged. The property obtained by the fraudulent practices of defendant was different from that described in the indictment. This difference was so significant that...