State v. Nordman

• Decision Date: 08 April 1897
• Parties: STATE v. NORDMAN.
• Court: Iowa Supreme Court

101 Iowa 446

70 N.W. 621

STATE

v.NORDMAN.

Supreme Court of Iowa.

April 8, 1897.

Appeal from district court, Jones county; William P. Wolfe, Judge.

The defendant was convicted of the crime of larceny, and from a judgment which imposed a fine, and required that he be imprisoned in the county jail, he appeals. Affirmed.

Kinne, C. J., dissenting.

Welch & Welch, for appellant.

Milton Remley, Atty. Gen., for the State.

ROBINSON, J.

The indictment under which the defendant was convicted charged that he committed the crime of larceny from a building in the nighttime, in that he did willfully and feloniously take, steal, and carry away from a certain store building, in the nighttime, on a day specified, revolvers, pocket cutlery, and other articles owned by one Carpenter of the aggregate value of $138. The jury found that the defendant was not guilty of larceny from a store building in the nighttime, but that he was guilty of larceny, and fixed the value of the property taken at $9.90.

1. A portion of the charge given by the district court to the jury was as follows: “The indictment charges larceny from a store building in the nighttime. If you fail to find the defendant guilty of the crime charged in the indictment, you may find him guilty of the included crime of larceny, if you find, under these instructions, the evidence warrants you in doing so; and in considering whether he is guilty of such included crime you will observe the instructions herein given you on the subject of reasonable doubt and circumstantial evidence, and you should not convict of the higher offense if you have a reasonable doubt as to the degree.” The appellant complains of this and of another paragraph of the charge, because they authorized his conviction of the crime of larceny, and insists that there cannot be a lawful conviction of that crime under an indictment which charges the crime of larceny from a store in the nighttime. The question thus presented may be stated as follows: Does larceny from a store in the nighttime include larceny? Section 3902 of the Code contains the following: “If any person steal, take, and carry away of the property of another, any money, goods, or chattels, * * * he is guilty of larceny and shall be punished, when the value of the property stolen exceeds the sum of twenty dollars, by imprisonment in the penitentiary not more than five years, and when the value of the property stolen does not exceed twenty dollars, by fine not exceeding one hundred dollars, or imprisonment in the county jail not exceeding thirty days.” Section 3903 provides that, if any person, in the nighttime, commit larceny in any dwelling house, store, or other buildings mentioned, when the value of the property stolen exceeds the sum of $20, he shall be imprisoned in the penitentiary not exceeding 10 years; and when the value of the property stolen does not exceed $20, he shall be punished by fine not exceeding $300 and imprisonment in the county jail not exceeding 1 year. Section 3904 provides that, if any person, in the daytime, commit larceny as specified in the preceding section, and the value of the property stolen exceeds $20, he shall be punished by imprisonment in the penitentiary not more than 5 years, and when the value of the property stolen does not exceed $20, by fine not exceeding $200, and imprisonment in the county jail not exceeding 1 year. These three sections do not relate to separate and distinct offenses, but to one only,--the crime of larceny. It was said in State v. Elsham, 70 Iowa, 532, 31 N. W. 67, that section 3902 defines that crime, and prescribes the punishment for it when there are no circumstances of special aggravation, and that the other two sections merely point out certain circumstances which are an aggravation of the offense, but that the crime denounced in both is larceny; that “the facts of the time and place of the commission of the offense affect only the degree of punishment which shall be imposed upon the offender.” In State v. Murray, 55 Iowa, 530, 8 N. W. 350, it was said that it was not inaccurate to say with respect to punishment that there are degrees in larceny, but that there were not degrees of the crime. In State v. Mikesell, 70 Iowa, 176, 30 N. W. 474, the defendant was convicted of the crime of robbery. He had previously been acquitted of the crime of larceny from a dwelling house in the nighttime, based upon the same transaction, and pleaded that acquittal in bar of the prosecution for robbery. This court held that the plea was good, and said that larceny was an element of both offenses, and that under section 4466 of the Code a defendant who is tried on an indictment which charges him with the commission of either of those crimes might be convicted simply of the larceny of the property described in the indictment, “for the commission of that offense would necessarily be included in that with which he was charged; and an acquittal of either of those crimes is likewise an acquittal of the larceny of the property, and a bar to an indictment for that...