State v. Phipps

• Decision Date: 07 October 1895
• Citation: 64 N.W. 411,95 Iowa 491
• Parties: STATE v. PHIPPS ET AL.
• Court: Iowa Supreme Court

95 Iowa 491

64 N.W. 411

STATE

v.PHIPPS ET AL.

Supreme Court of Iowa.

Oct. 7, 1895.

Appeal from district court, Boone county; R. D. Hindman, Judge.

Defendants were jointly indicted for the crime of malicious mischief. They were each convicted of the offense charged, and appeal to this court. Affirmed.Jordon & Brockett, for appellants.

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

DEEMER, J.

The charging part of the indictment is as follows: “The said William Phipps and George Phipps, on the 28th day of February, A. D. 1892, in the county of Boone and state of Iowa, did willfully and unlawfully take and ride off one horse and one mare, the property of Robert Royster, and then and there did willfully, unlawfully, and maliciously secrete said horse and mare, and did injure said horse and mare by riding said horse and mare a long distance through the mud and snow, and turning them loose without food or care, all without the permission or consent of said Robert Royster.” This indictment was drawn to cover the offense described in Code, § 3985, which, so far as material, is as follows: “If any person * * * wilfully and maliciously destroy, injure or secrete any goods, chattels or valuable papers of another, he shall be punished,” etc. It is insisted that the indictment is bad for duplicity in that it charges (1) that defendants took and rode off the property, and did then and there secrete it; (2) that defendants took and rode off the horse and mare, and did then and there injure the same by riding them a long distance through the mud. It will be noticed that the statute uses the words “destroy, injure or secrete” disjunctively. The rule of the law is well settled that where the words are so used the indictment may cover them conjunctively without being vulnerable to the charge of duplicity. State v. Cooster, 10 Iowa, 453; State v. Myers, Id. 448; State v. Barrett, 8 Iowa, 536;State v. Dean, 44 Iowa, 648;State v. Abrahams, 6 Iowa, 117;State v. Hockenberry, 11 Iowa, 269;State v. Baughman, 20 Iowa, 497; Stevens v. Com., 6 Metc. (Mass.) 241; State v. Paul, 81 Iowa, 597, 47 N. W. 773. The objection is without merit.

2. It is further insisted that the indictment charges no indictable offense. The argument proceeds upon the theory that, as the offense of “killing, maiming, and disfiguring horses” is covered by a previous section of the Code, and the crime of “tormenting, beating, depriving of necessary sustenance, mutilating, killing, or overdriving of animals”...