State v. Moe
| Decision Date | 13 February 1923 |
| Docket Number | 34853 |
| Citation | 191 N.W. 858,195 Iowa 270 |
| Parties | STATE OF IOWA, Appellee, v. HAROLD MOE, Appellant |
| Court | Iowa Supreme Court |
Appeal from Woodbury District Court.--W. G. SEARS, Judge.
INDICTMENT for grand larceny. The indictment charged that the defendant did feloniously steal and carry away one Ford touring car of the value of $ 500, and the property of J. E. Hamblin, and that said property was in the possession of Virgil Keefe at the time of the taking. There was a verdict of guilty and judgment thereon, and defendant appeals.
Affirmed.
L. B Forsling and H. F. Sims, for appellant.
Ben J Gibson, Attorney-general, and B. J. Flick, Assistant Attorney-general, for appellee.
The ground of reversal urged upon our attention is predicated upon the fact that the instructions of the trial court wholly ignored that allegation of the indictment which laid the possession of the stolen car in Virgil Keefe. The instructions submitted the case as though the indictment had charged the taking of the stolen property from the possession of its owner, Hamblin. It is urged that this created a variance between the instructions and the indictment. There was no variance as between the indictment and the evidence. From the evidence, it appears that Virgil Keefe was the owner of a public garage, and that Hamblin kept his car in a rented stall in such garage. The inference of the record is that the car was in daily use by its owner, and taken from and returned to the stall by him daily. It was in this sense that Keefe was in possession, the car being stolen at night out of its stall in Keefe's garage. The purpose of stating the name of the injured party in an indictment is to identify the particular offense. If the particular offense is otherwise sufficiently identified, the allegation is not essential, and even an error therein is not material. Code Section 5286. The allegation in this indictment laying the possession of the stolen property in Keefe was quite unnecessary, and may be deemed surplusage. It did not present a case of variance, because it was not inconsistent with the other allegations of the indictment, nor with the evidence, nor with the instructions of the court. As to third parties, and especially as to trespassers, the possession of a bailee is the possession of his bailor. In this case, the indictment could...
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