State v. McCray

• Decision Date: 01 November 1920
• Docket Number: No. 33481.,33481.
• Citation: 179 N.W. 627,189 Iowa 1239
• Parties: STATE v. MCCRAY.
• Court: Iowa Supreme Court

189 Iowa 1239

179 N.W. 627

STATE

v.MCCRAY.

No. 33481.

Supreme Court of Iowa.

Nov. 1, 1920.

Appeal from District Court, Woodbury County; J. W. Anderson and W. G. Sears, Judges.

The appellant was indicted for the crime of breaking and entering. He was tried to a jury, found guilty, and judgment pronounced. He appeals. Affirmed.

Salinger, J., dissenting.

C. R. Metcalfe, of Sioux City, for appellant.

H. M. Havner, Atty. Gen., B. J. Powers, Asst. Atty. Gen., and O. T. Naglestad, Co. Atty., and O. D. Nickle, Asst. Co. Atty., both of Sioux City, for the State.

PRESTON, J.

[1] 1. The indictment charges that defendant “did then and there, etc., break and enter a building, to wit, a store, * * * the said building then and there being owned by Sam Simonoff, and in which building were then and there kept by the said Sam Simonoff money, goods, merchandise, and other valuable things, for the use, sale, and deposit of said Sam Simonoff,” etc. The testimony shows that Simonoff was not the owner of the legal title, but that he leased it, and was in possession, and owned the stock of goods and operated the store. It is thought by appellant that there was a fatal variance between the allegations in the indictment and the proof as to the ownership of the building, and that his motion in arrest of judgment should have been sustained. Code, § 5289, specifies what the indictment must show, and subdivision 6 reads:

“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, that it be so stated in the indictment.”

In some cases, the exact name is not material, and an erroneous allegation as to the name is not prejudicial. State v. Leasman, 137 Iowa, 191, 114 N. W. 1032;State v. Burns, 119 Iowa, 663, 94 N. W. 238. Appellant cites State v. Morrissey, 22 Iowa, 158,State v. McConkey, 20 Iowa, 574,State v. Jelinek, 95 Iowa, 420, 64 N. W. 259,State v. Wrand, 108 Iowa, 74, 78 N. W. 788, and State v. Wasson, 126 Iowa, 320, 101 N. W. 1125, as holding that the ownership of the building must be alleged, and in the owner. In the Morrissey Case the indictment simply charged defendant with breaking and entering a barn, without giving the name, either of the owner, tenant, or party in possession. In the McConkey Case, defendant was charged with trespass, and the indictment charged that defendant did commit willful trespass upon the land of another, and not his own, describing the land, without any further description of the owner. In the Jelinek Case it was charged that defendant broke into the store of certain persons named, known as the Grange Store. This indictment was held sufficient and a conviction sustained, where it was shown that the store was known as the Grange Store, though it also appeared that the persons named did not own this store as individuals, but as a corporation. The Morrissey Case was distinguished. A conviction was sustained in the Wrand Case, where, in the indictment, the ownership of the building and of the goods is laid in James A. Morrow, and the proof showed that they belonged to and were in possession of John A. Morrow. The opinion states that it has been uniformly held that, in the absence of prejudice, an erroneous allegation of the name of the party injured is immaterial. It is also said that it was unnecessary to allege or prove who owned the goods, citing cases. In the Wasson Case the charge was robbery. The indictment charged the defendant with stealing, etc., from the person of one Malone certain money, but without otherwise alleging the ownership of the property. The indictment was held insufficient, the court saying in part that, to constitute the crime of robbery, there must be larceny from the person, and that the rule in this state is that an indictment charging robbery must allege the ownership of the property. The Wasson Case was cited in State v. Clark, 141 Iowa, 297, 302, 119 N. W. 719, a false pretense case. We said that the three crimes of robbery, larceny, and obtaining property by false pretenses have many essential elements in common, and that in each the gist of the offense is the felonious taking and conversion of the property of another. In breaking and entering the gist of the offense is the breaking and entering. It is not necessary that there should be any larceny at all. The state cites Code, § 5286, which 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 injured or attempted to be injured is not material.”

They also cite State v. Lee, 95 Iowa, 427, 64 N. W. 284,State v. Porter, 97 Iowa, 450, 66 N. W. 745,State v. Semotan, 85 Iowa, 57, 51 N. W. 1161,State v. Emmons, 72 Iowa, 265-267, 33 N. W. 672, and State v. Burns, 155 Iowa, 488, 136 N. W. 520, where are cited numerous other of our cases, which hold, we think, that under the circumstances shown in the instant case there was no variance. In some of the cases it is said that burglary is not an offense against the fee title of the realty, but is an offense against the security of its occupancy or habitancy, and that in an indictment for burglary ownership means any possession which is rightful, as against the burglar. Under many circumstances, the ownership may be laid with equal propriety in one person or in another, in the owner or his tenant, in the master or in the servant occupying under him. The purpose of the allegation of ownership in an indictment for burglary is to specify and identify the offense. On these propositions, see cases cited in the Burns Case. There was no variance.

[2] 2. The court charged, in substance:

“That all persons concerned in the commission of a public offense, whether they directly commit the act constituting the offense or aided or abetted in its commission, must be indicted, tried, and punished as principals. So in this case it is not necessary for the state to show that the defendant, James McCray, actually did the act constituting the offense; if it is shown beyond a reasonable doubt that he was present aiding and abetting another, or others, in doing the act, and thereby concerned in committing the offense, it will be for you to say whether he committed the act, or was concerned in its commission by another or others,” etc.

Appellant contends that, since no conspiracy was charged in the indictment, and no charge of another aiding or abetting in the commission of the offense, the instruction was erroneous. The instruction is in harmony with Code, § 5299, which provides that the distinction between an accessory before the fact and a principal is abrogated, and all persons concerned in the commission of the offense, or who aid and abet its commission, must be indicted as principals, etc. It is also thought that there is no evidence tending to show that defendant aided and abetted any person, and that it was error to instruct upon an issue not in the case. The evidence which justified the jury in finding that defendant was concerned in the commission of this offense, will be referred to later.

[3] 3. It appears that the trial was commenced before Judge Anderson, and, as appellant states it, the evidence for the state was introduced, and the defendant gave his testimony, and then the case was taken up, and the trial continued before Judge Sears, another judge of the same district, who finished the trial and instructed the jury. It appears that Judge Anderson was taken sick and taken to the hospital, and the matter of proceeding with the trial was taken up in open court. No objection was made to this procedure, no request for a continuance, or that a new jury be called, or that the witnesses be recalled to testify again, and in fact the record clearly shows that defendant expressly consented thereto, at least his counsel did so in open court, and in the presence of the defendant. True, the record does not show that the defendant in person, by his own words, consented, but he was charged with a felony, and the law requires his presence at all stages of the trial, and, in the absence of any showing to the contrary, it will be presumed that he was present as the law requires. The matter is first raised in the motion for new trial.

Appellant cites Code, § 241, which provides that judges shall not sit together in the trial of cases, etc. These judges did not sit together. The argument is that since the statute prohibits them from sitting together, by analogy they could not sit apart in the actual trial of the same case. They cite 16 Standard Ency. of Procedure, 639, to the effect that whenever one of the judges has taken cognizance of a case, ordinarily no other judge has the power to interfere in the matter, It is conceded that there are some acts that different judges may perform in the same case. We assume that the real objection is, as argued, that ordinarily it is necessary, in passing upon the motion for new trial, the judge should have heard the evidence. The record shows that Judge Sears familiarized himself with the evidence, which had been received before proceeding with the testimony. We are compelled to do that from the record, without seeing the witnesses. But conceding, for the purposes of the case, that ordinarily the rule is as contended, still there was an advantage to the defendant in proceeding with the trial. He was confined in jail, and doubtless desired a speedy trial. As said, he did not ask for a continuance, but desired and consented to proceed. The contention of the state is, in effect, that, defendant having consented to proceed, he may not speculate upon the chances of an acquittal, but take advantage of it if convicted. It is said that, as a general rule, a succeeding judge has authority to hear and determine a motion for new trial in a case heard by his predecessor, where the latter has...