State v. Lightfoot

Decision Date26 January 1899
Citation78 N.W. 41,107 Iowa 344
PartiesSTATE v. LIGHTFOOT.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from district court, Cedar county; H. M. Remley, Judge.

The defendant was convicted of the crime of exposing a poisonous substance, with intent that it should be taken by a horse, and from a judgment which required that he be imprisoned in the county jail for the period of 9 1/2 months, and pay the costs of the prosecution, he appeals. Reversed.

Robinson, C. J., and Granger, J., dissenting.

W. G. W. Geiger and R. R. Leech, for appellant.

Milton Remley, Atty. Gen., C. O. Boling, and W. H. Redman, for the State.

DEEMER, J.

The indictment charges that the defendant, “on the 3d day of May, A. D. 1894, did willfully and unlawfully expose a certain poisonous substance, to wit, strychnine, by placing the same in or about the feed trough of a certain domestic animal, to wit, a horse, Mollie Cedar, the intent then and there being that the said horse Mollie Cedar should take the said poisonous substance, the said horse being then and there the property of J. P. Stotler, contrary to the statutes of Iowa and in violation thereof.” The evidence tends to show that, in the night following the day specified in the indictment, several horses owned by Stotler were poisoned with strychnine. They were in three barns, and five of them, including the one named in the indictment, were in one barn. From the evidence the jury may well have found that poison was exposed in the feed boxes of the horses, with the intent that it should be taken by them.

1. In March, 1896, an information charging the defendant with the offense of which he was convicted was filed with W. G. Busier, a justice of the peace. The defendant was arrested by virtue of a warrant issued on the information, and brought before the justice, and, waiving examination, he gave bail for his appearance before the district court. When the grand jury which acted upon the information and returned the indictment was impaneled, Busier was appointed foreman. He was challenged by the defendant on the ground that he was the magistrate before whom the preliminary hearing was had, the challenge was sustained, and Busier was directed by the court not to take any part in the proceedings when the charge against the defendant was being investigated. The indorsement “A true bill on the indictment was returned, signed by Busier as foreman, and the defendant moved to set it aside for that among other reasons. The motion was overruled, and of that ruling the defendant complains. Section 4291 of the Code of 1873, as amended by chapter 42 of the Acts of the 21st General Assembly, is as follows: “An indictment cannot be found without the concurrence of four grand jurors, when the grand jury is composed of five members; and not without the concurrence of five grand jurors when the grand jury is composed of seven members. Every indictment must be indorsed ‘A true bill,’ and the indorsement must be signed by the foreman of the grand jury.” It was thus made the duty of the foreman of a grand jury to sign the indorsement required, although he might not have approved the indictment; and the fact that Busier signed the indorsement in question does not show that he concurred in the indictment, nor that he took any part in the proceedings which resulted in the indictment. Whether it would have been presumed that he did take part in such proceedings, had he not been directed to refrain from so doing, we have no occasion to determine. It must be presumed, in the absence of a showing to the contrary, that he obeyed the direction of the court; and the fact that he performed the statutory duty in signing the indorsement, after the investigation had been completed and the action to be taken determined, does not overcome that presumption.

2. One ground of the motion to set aside the indictment was that the minutes of the evidence of J. W. Carney, whose name was indorsed on the indictment as that of a witness, were not returned with the indictment. The record does not show that the minutes referred to were not so returned.

3. Defendant demurred to the indictment, and his demurrer was overruled. It is contended that this was error, for the reason that the indictment does not charge that the acts were done maliciously. The charge is based upon section 3977 of the Code of 1873, which is found under the head of “Malicious Mischief and Trespass on Property,” and reads as follows: “If any person maliciously kill, maim or disfigure any horse * * * or other domestic beast of another; or maliciously administer poison to any such animals; or expose any poisonous substance with intent that the same should be taken by them, he shall be punished,” etc. The indictment charges that defendant willfully and unlawfully exposed a poisonous substance, to wit. strychnine, etc. Does this charge an offense under the section quoted? It will not do to say that it is a crime for one to expose poison with the intent that the same should be taken by the animals of another. Such act, under the statute, must have been maliciously done, and to charge that the act was unlawful and willful is not equivalent to saying that it was malicious. State v. Gove, 34 N. H. 516;State v. Hussey, 60 Me. 410. The term “willful” means only that the act was done intentionally, or that it was done purposely and deliberately. State v. Windahl, 95 Iowa, 470, 64 N. W. 420;State v. Clark, 102 Iowa, 685, 72 N. W. 296. And the term “unlawfully” implies that the act is done or not done as the law allows or requires. State v. Massey, 97 N. C. 465, 2 S. E. 445. The insertion of the word “unlawfully” does not dispense with the necessity of specifically allegingthe elements required by the enacting clause of a statute and by the rules of criminal pleading to constitute the crime charged against the defendant. Com. v. Byrnes, 126 Mass. 248, and cases cited. All that is charged in the indictment is that defendant purposely exposed poison, in disregard of law. To our minds, this does not charge an indictable offense. Code 1873, § 4298, says that an indictment must be direct and certain as regards the particular circumstances of the offense charged, when they are necessary to constitute a complete offense. We have held that it is not sufficient to simply charge that an act was unlawfully done. State v. Railway Co., 63 Iowa, 508, 19 N. W. 299. In construing a similar statute to the one now under consideration, we said in State v. Harris, 11 Iowa, 414: “Malice towards the owner of the animal is the ingredient of this offense.” See, also, State v. Williamson, 68 Iowa, 351, 27 N. W. 259, and State v. Linde, 54 Iowa, 139, 6 N. W. 168, which apply the same rule to the statute now under consideration. There can be no doubt, we think, that the proper construction of the statute is that, to constitute a crime, the poison must be maliciously exposed. While it may be true that the proper grammatical construction of the statute is that it is a crime to expose poison at any time, and for any purpose, with intent, etc., yet we do not think the use of a semicolon instead of a comma is controlling. Punctuation, if of any significance, is always the last resort. Shriedley v. State, 23 Ohio St. 130. The place in which the section is found in the Code is quite significant. If malice is an essential ingredient of the offense, it must be charged, and the use of the words “willfully and unlawfully” is not sufficient. Boyd v. State, 2 Humph. 39;Thompson v. State, 51 Miss. 353;State v. Jackson, 34 N. C. 329;Com. v. Williams, 110 Mass. 401;State v. Newby, 64 N. C. 23. The case of State v. Gould, 40 Iowa, 372, is not in conflict with this conclusion. The indictment in that case was framed under section 4089 of the Code of 1873, not under 3979, and malice is not an essential ingredient of the crime of nuisance. It is always an essential in cases of malicious mischief. See cases heretofore cited, and People v. Olsen, 6 Utah, 284, 22 Pac. 163;U. S. v. Gideon, 1 Minn. 292 (Gil. 226); State v. Pierce, 7 Ala. 728;State v. Wilcox, 3 Yerg. 277. The demurrer to the indictment should have been sustained.

4. The appellant complains that he was required to plead and go to trial on the day the demurrer was overruled, and that he was not allowed the time given by law in which to plead and prepare for trial. The record fails to show any objection to what was thus done.

5. On the trial Stotler was permitted to state, notwithstanding objections of the defendant, the number of horses he had in different barns on the night of the poisoning; the condition the horses were in at the time; the number of horses and kinds and arrangement of stalls in the barn in which Mollie Cedar was kept; the number of boxes in that barn in which poison was found; and the number of separate barns in which horses were poisoned; and the number of boxes shown to a druggist named Hampton for examination. We do not find any error in admitting the evidence to which reference has been made. No poison was taken from the box of Mollie Cedar, although it contained some of the preparation in which strychnine was found in other boxes. The testimony in regard to other horses and other barns tended to explain and show the premeditated and malicious character of the act which caused the death of Mollie Cedar.

6. A witness named Alger was permitted to testify that he and the defendant were talking about going to Missouri, and that the defendant said he was not ready to go yet, until he got through dealing with some of these sons of bitches around here.” A motion to strike out that testimony was denied, and of that ruling the defendant complains. He relies upon State v. Millmeier (Iowa) 72 N. W. 275, as supporting his complaint. There is nothing in that case to indicate to whom or to what the threat of the defendant, which was in question, referred. The threat or statement under consideration in this case was made in a second conversation which...

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  • State v. Fagan
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    • 13 d3 Outubro d3 1971
    ...66 Iowa 426, 23 N.W. 907; State v. Tucker, 96 Iowa 276, 65 N.W. 152; State v. Douglass, 96 Iowa 308, 65 N.W. 151; State v. Lightfoot, 107 Iowa 344, 78 N.W. 41 (dictum); State v. Rea, 126 Iowa 65, 101 N.W. 507; State v. Williams, 195 Iowa 374, 191 N.W. 790; State v. Stricker, 196 Iowa 290, 1......
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    • Iowa Supreme Court
    • 9 d2 Fevereiro d2 1965
    ...law as stated in these instructions.' (Emphasis supplied.) The italicized words should have been deleted. We said in State v. Lightfoot, 107 Iowa 344, 351, 78 N.W. 41, 43: 'The rule is well settled that the jury alone can determine questions of fact in a criminal case, and that the judge ca......
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    • Iowa Supreme Court
    • 21 d2 Setembro d2 1954
    ...an alibi is an affirmative defense, which the one setting it up has the burden of proving by a preponderance of the evidence, in State v. Lightfoot, 107 Iowa 344, on page 351, 78 N.W. 41, on page 43, in answer to defendant's complaint that 'the court did not charge the jury in regard to an ......
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    • 14 d2 Março d2 1911
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