State v. Pierce

• Citation: 42 N.W. 181,77 Iowa 245
• Parties: STATE v. PIERCE.
• Decision Date: 09 May 1889
• Court: United States State Supreme Court of Iowa

77 Iowa 245

42 N.W. 181

STATE

v.PIERCE.

Supreme Court of Iowa.

May 9, 1889.

Appeal from district court, Boone county; D. D. MIRACLE, Judge.

The defendant was convicted of the crime of larceny committed by the embezzlement of property of the value of $106.50. From the judgment of the court requiring him to be imprisoned in the penitentiary at Ft. Madison at hard labor for the term of one year he appeals.A. H. Denman, for appellant.

A. J Baker, Atty. Gen., for the State.

ROBINSON, J.

The portions of the indictment under which defendant was convicted, which we need to consider, are as follows: “The grand jury of the county of Boone, in the name and by the authority of the state of Iowa, accuse Philo Pierce of the crime of larceny, committed as follows: ‘That said Philo Pierce did, in said county of Boone and state of Iowa, between the 21st day of August, A. D. 1886, and the 1st day of December, 1886, and at various days between said dates, being then and there the agent of the W. W Kimball Company, an incorporate company and over the age of sixteen years, then and there, by virtue of his said employment, have, receive, and take into his possession certain property, to-wit;’ [Here is given a specific description of each of two pianos and seven organs, including the separate value of each;] ‘all being the property of the said W. W. Kimball Company; and that the said Philo Pierce did then and there unlawfully, feloniously, and fraudently embezzle and convert to his own use, without the consent of the said W. W. Kimball Company, his employer, the aforesaid property, by which the said Philo Pierce is deemed to have committed the crime of larceny. * * *’ ” On the 13th day of April, 1887, the cause coming on for trial, the state appeared by attorneys, and the defendant appeared personally and by attorneys. A jury was called, impaneled, and sworn, the indictment was read, and the opening statements were made for the state, when counsel for defendant suggested that there had been no arraignment nor plea entered. The court found that such was the case, and ordered the defendant arraigned, which was done against his objection. He asked time to plead, and was given one day for that purpose, and the jury was discharged, to which defendant excepted. On the next day the defendant entered a written plea of not guilty, and also pleaded that he had been once in jeopardy by reason of the proceedings of the day before, which were stated. A demurrer to the second plea was sustained.

1. It is insisted by appellant that the indictment is bad for duplicity in that it charges the embezzlement of distinct chattels, separately described, and designed to be dealt with separately. The instruments in controversy seem to have been treated as part of a stock belonging to the W. W. Kimball Company, in the hands of defendant for sale. A separate account with each instrument was not kept, but all were included in one account. The contract between defendant and the company was one of agency. The instruments were to remain the property of the company until they were sold, and they were to be sold only according to specified terms. In case of time contracts of sale the blank forms of the company were to be used. Cash and contracts taken were to be promptly remitted to the company. All instruments remaining in the hands of defendant longer than 30 days were to be subject to the order of the company. Defendant was required to account to the company for the invoice prices of the goods. Either party had the right to terminate the agency at any time, and the stock was to be subject to the order of the company. It has been held that in cases of larceny and similar offenses the taking of several articles may be charged in a single count. Wh...