State v. Osborne

• Decision Date: 11 December 1895
• Citation: 65 N.W. 159,96 Iowa 281
• Parties: STATE v. OSBORNE.
• Court: Iowa Supreme Court

96 Iowa 281

65 N.W. 159

STATE

v.OSBORNE.

Supreme Court of Iowa.

Dec. 11, 1895.

Appeal from district court, Polk county; W. F. Conrad, Judge.

Indictment for robbery. Verdict of guilty, and judgment thereon. The defendant appealed. Affirmed.A. A. Haskins, for appellant.

Jesse A. Miller, with Milton Remley, Atty. Gen., for the State

GRANGER, J.

1. The indictment is said to be bad for duplicity. It charges that “said defendant, being then and there armed with dangerous weapons, to wit, revolvers, with the felonious intent then and there to kill and maim one E. G. Cless, then and there, if the said E. G. Cless should resist them, the said defendants, and said defendants, then and there armed, as aforesaid, with the felonious intent aforesaid, did then and there, willfully and unlawfully, in and upon said one E. G. Cless feloniously make an assault, and the said E. G. Cless in bodily fear and danger of his life then and there feloniously did put, and one gold watch, of the value of thirty-five dollars, of the property of the said E. G. Cless, from his person, and against the said E. G. Cless, then and there feloniously did rob, steal, take, and carry away.” The indictment charges the offense against three persons, of whom the defendant is one. The charge of duplicity against the indictment is that it includes the crimes of robbery and an assault with intent to kill.

The statute under which the indictment is laid is as follows:

“Sec. 3858. If any person with force or violence, or by putting in fear, steal and take away from the person of another any property that is the subject of larceny, he is guilty of robbery, and shall be punished according to the aggravation of the offence as is provided in the following two sections.

Sec. 3859. If such offender at the time is armed with a dangerous weapon, with intent if resisted to kill or maim the person robbed; or if being so armed he wound or strike the person robbed; or if he has any confederate aiding or abetting him in such robbery present and so armed, he shall be punished by imprisonment in the penitentiary for a term not exceeding twenty years nor less than ten years.”

With the law defining the offense in view, it is plain to be seen that the indictment does not include two offenses. The language reliedon as stating an offense of an assault with intent to kill is employed to define or fix the character of the offense charged, as by showing the manner of commitment, and as showing the essential ingredient of force or violence or putting in fear. The language as to the dangerous weapon, and the intent to kill or maim if resisted, is to show the aggravation of the offense, under section 3859, to indicate the punishment to be imposed. It may be said to be a degree of the offense. It may be that the offense is charged with unnecessary particularity in some respects, but in that event the particulars are to be treated as surplusage. State v. Hayden, 45 Iowa, 11;State v. Shaffer, 59 Iowa, 290, 13 N. W. 306;State v. Hull, 83 Iowa, 112, 48 N. W. 917. Of course, it is not to be understood that language actually charging a second offense would be treated as surplusage, to preserve the validity of an indictment. But the manifest intent, in the use of language, is a controlling consideration.

2. One Dodson was a witness for the state, and testified that he knew Osborne, and that, on the night of the robbery, Osborne was at his (witness') place of business for a minute or two. On cross-examination he said, “I am working for Joe Lehner.” He was then asked, “What business is conducted in that place?” The question was excluded as immaterial. The question is said to come within the rule announced in State v. Row, 81 Iowa, 138, 46 N. W. 872. It is there held that it is the right of a party against whom a witness is used to know certain facts as to his history that will aid the jury to properly estimate the value of his statements, and that, guided by the discretion of the trial court, inquiries may be made into such matters as will show a disposition or likelihood to favor the party for whom he is called, and to disclose...