State v. Leasman
| Decision Date | 24 June 1929 |
| Docket Number | 39265 |
| Citation | 226 N.W. 61,208 Iowa 851 |
| Parties | STATE OF IOWA, Appellee, v. JOE LEASMAN, Appellant |
| Court | Iowa Supreme Court |
Appeal from Madison District Court.--E. W. DINGWELL, Judge.
In so far as material, the opinion states the case.
Reversed.
Phil R Wilkinson and Wisdom & Wisdom, for appellant.
John Fletcher, Attorney-general, and Neill Garrett, Assistant Attorney-general, for appellee.
On the 6th day of October, 1927, the defendant, Joe Leasman, and one Arthur Frey were jointly charged by an indictment consisting of two counts. The first count of the indictment charges that the said Joe Leasman and Arthur Frey, on or about the 29th day of August, 1927, did break and enter into a building, to wit, a granary in which goods and other valuable things, to wit, timothy seed, were kept for use, with the specific intent to then and there commit a public offense, to wit, the crime of larceny in a building, etc. The second count of the indictment charges that the said Leasman and Frey, on or about the 29th day of August, 1927, did feloniously take steal, and carry away from a building, to wit, a granary, seven bushels of timothy seed of the value of $ 9.10, etc.
The defendants were granted separate trials. Frey was first tried and convicted, and perfected an appeal to this court. For opinion in said case, see State v. Frey, 206 Iowa 981, 221 N.W. 445.
On October 8, 1927, the defendant, Leasman, entered a plea of not guilty. Thereafter, only for the purpose of a demurrer to be filed, the defendant withdrew his plea of not guilty. In his demurrer he states:
"(1) That it appears upon the face of said indictment that it charges the defendant with two separate, distinct, and disconnected offenses; (2) that it appears upon the face of said indictment that this defendant is charged with two offenses which are distinct, separate, and not compound offenses; (6) that it appears upon the face of the indictment that two complete, distinct, and unconnected crimes are charged therein, which said crimes do not constitute a compound offense."
On October 25, 1927, said demurrer was presented to the court, and overruled. On December 5, 1927, upon motion of the county attorney, the second count of the indictment was dismissed. On December 12, 1927, the trial was begun, and as a result of the trial, the jury returned a verdict of guilty "of the crime of breaking and entering, as charged in the indictment."
On December 30, 1927, defendant's motion for a new trial and his motion in arrest of judgment were overruled, and judgment pronounced, committing the defendant to the Men's Reformatory at Anamosa for an indefinite period, not exceeding ten years. From this judgment, the defendant appeals.
It is the defendant's contention that the court erred in overruling his demurrer, and this complaint of the defendant's presents the first question for our consideration. The defendant's demurrer is to the effect that the indictment is bad for duplicity, in that it charges two separate and distinct offenses, to wit: (1) breaking and entering a building with the specific intent to commit the crime of larceny, and (2) larceny in or from a building. It is provided by our statutory law, Section 13737 of the Code of 1927, that, with certain exceptions hereafter to be noted, the indictment must charge but one offense. One exception is found in Section 13738 of the Code, which provides:
"In case of compound offenses where in the same transaction more than one offense has been committed, the indictment may charge the several offenses and the defendant may be convicted of any offense included therein."
Burglary or breaking and entering is not a compound offense which includes larceny. State v. McFarland, 49 Iowa 99; State v. Ridley and Johnson, 48 Iowa 370; State v. Rhodes, 48 Iowa 702; State v. Frey, supra. Therefore, there was no warrant for charging both breaking and entering and larceny in the same indictment, by reason of the provisions of the section just quoted.
Another exception to Section 13737 of the Code, hereinbefore referred to, is the statute which was enacted by the forty-second general assembly, now found in Section 13738-b1 of the Code, which provides:
(The italics are ours.)
It was claimed by the defendant in State v. Frey, supra, that this same indictment was bad for duplicity; but the objection was therein raised by motion in arrest of judgment, instead of by demurrer, and we held that, since the question was not raised by demurrer, the objection had been waived by the defendant, and we found it unnecessary to determine whether the crime of breaking and entering the building with intent to commit larceny, and the crime of larceny from the building, were properly charged in the indictment. In the instant case, the question is properly raised by demurrer. Hence, we must now determine whether the two offenses are properly charged in the two separate counts of the indictment, by reason of the provisions of Section 13738-b1 of the Code, hereinbefore quoted. As said in the Frey case:
"It will be observed that the indictment does not in terms charge that the larceny from the building charged in Count 2 was committed in connection with the breaking and entering charged in Count 1."
Perhaps it was the intention of the county attorney, in drawing the indictment, to comply with this section of the Code; but his intention cannot be allowed to prevail unless he has, in fact, done so. A defendant is not put on trial on the intentions of the county attorney not expressed in the indictment. The statutory law is plain and unambiguous. It has not been complied with, in that there is an absolute failure to allege that the crime of larceny was committed in connection with the crime of burglary or breaking and entering. By reading the two counts, one might guess or surmise, but could not determine with any definite degree of certainty that the crime of larceny charged in Count 2 was committed in connection with the crime of breaking and entering charged in Count 1. It is true that the location of the granary in each count is identical, and the date is identical; but it has been repeatedly held, and the rule is so well recognized as not to require the citation of authorities, that the allegation in the indictment as to the date or time of the commission of the offense is immaterial and that it is sufficient if the evidence shows that the crime was committed at any time prior to the finding of the indictment and within the period of the statute of limitations. This applies to the time of the commission of the offense charged in either count of the indictment. There is no allegation in the indictment which ties together the two offenses and alleges their commission as a part of the same transaction. If the defendant should rely upon the allegations of the indictment as charging that the crime of larceny charged in Count 2 was committed in connection with the crime of breaking and entering charged in Count 1, he might be met with proof by the State that the crime of larceny charged in Count 2 was committed at another time, even on the same...
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