State v. Potter, 34264.

• Decision Date: 06 February 1923
• Docket Number: No. 34264.,34264.
• Citation: State v. Potter, 195 Iowa 163, 191 N.W. 855 (Iowa 1923)
• Parties: STATE v. POTTER.
• Court: Iowa Supreme Court

195 Iowa 163

191 N.W. 855

STATE

v.POTTER.

No. 34264.

Supreme Court of Iowa.

Feb. 6, 1923.

Appeal from District Court, Louisa County; Oscar Hale, Judge.

The defendant was indicted for the crime of larceny.Verdict of jury finding the defendant guilty, and he was sentenced to the penitentiary for the statutory period.Defendant appeals.Reversed.

Superseding former opinion, 186 N. W. 919.E. M. Warner, of Muscatine, and H. O. Weaver and Arthur Springer, both of Wapello, for appellant.

Ben J. Gibson, Atty. Gen., and Molsberry & Reaney, of Columbus Junction, for the State.

DE GRAFF, J.

The indictment charges one George S. Potter with the larceny of two certain promissory notes.The allegation of ownership therein is as follows:

“Both of which notes were the property of David L. Stetson, Pearl Stetson, and Harriett Williams, devisees under the will of Fred B. Stetson, deceased.”

[1][2][3] A promissory note is the subject of larceny.Code, § 4831;State v. Orwig, 24 Iowa, 102.The identity of notes may be established by circumstantial as well as by direct evidence.State v. Hoppe, 39 Iowa, 468.And parol evidence is admissible to show the contents and amount of stolen notes, if lost and nonproducible.In the instant case the notes in question were lost in struments, and consequently were not produced upon the trial.

[4] An indictment for larceny must charge that the thing alleged to be stolen is the property of some person other than the accused, and the proof must sustain the averment beyond a reasonable doubt.

In the former opinion of the court in this case, which is now withdrawn, but reported in 186 N. W. 919, an error of fact was made in that it was assumed that there was a duly appointed, acting, and qualified executor of the estate of Fred B. Stetson, deceased, at the time that the larceny charged in the indictment was committed.This error of fact is called to the attention of the court by the petition for rehearing on behalf of the state.The record discloses the fact to be that at the time of the alleged larceny there was no qualified executor of the said estate.The question presented, then, is whether the devisees named in the will of Fred B. Stetson had such right, title, or interest in the personal property alleged to have been stolen by the defendant that ownership could be predicated in them in an indictment for the larceny of said property.

[5][6] If a person has a special property in a thing, or holds it in trust for another, the ownership may be laid in either the real owner or the bailee.State v. Mullen, 30 Iowa, 203.This rule is applicable to an executor, receiver, or trustee, and gives him a qualified estate sufficient to entitle him to the possession thereof, and upon which an allegation of ownership may be predicated in an indictment for larceny.In the instant case, is there a fatal variance between the indictment and the proof offered to sustain the material allegation as to ownership?Fred B. Stetson, payee and holder of the notes alleged to have been stolen by this defendant, died testate February 25, 1918.Under the terms of his will he devised “one–half of all property, personal and real, to David L. Stetson, brother, Auburn, Maine.And in case he does not survive me, the same to go to his lawful heirs.”The other one–half of the testator's property, both real and personal, was devised to Pearl Stetson and Harriett Williams, children of his deceased brother.There were no specific bequests.

The alleged larceny of the notes occurred prior to the appointment of Ed. S. Hicklin as executor of the estate.He qualified April 2, 1918.The indictment charges the crime “on or about the 10th day of March, 1918.”It thus appears from both the allegations and the proof that the alleged larceny occurred during the interim between the date of the death of Stetson, the owner of the notes, and the date on which the executor qualified.

[7][8] The distribution of an estate through administration does not create a new title in any one.The final settlement and decree ascertains what property and to whom the title attaches.Moore v. Gordon, 24 Iowa, 158;Christe v. C., R. I. & P. Ry. Co., 104 Iowa, 707, 74 N. W. 697.Title to personal property upon the death of the owner must find lodgment in some one; otherwise ownership therein would terminate.

It is said on rehearing in Phinny v. Warren, 52 Iowa, 332, 3 N. W. 157:

“Upon the death of the payee of the note it may be conceded that the note became the property of the administrator, if there was one.But if no administrator is appointed it will not do to say that the note ceased to be property.Property cannot be thus blotted out.”

If an administrator or executor has been appointed, and personal property to which he is entitled to possession for the purpose of distribution is stolen, the indictment should predicate ownership in the administrator or executor.If no administrator or executor has been appointed at the time of the larceny of personal property to which he is entitled to take possession, then the court will recognize an equitable title in the parties entitled to distribution, whether devisees or next of kin.In the absence of creditors such persons have a complete equity in the property, and the property could be distributed without administration if they choose so to do.Who else, we ask, could be named under such circumstances as the owners of the property?

[9] The allegation of ownership is required in order that a person accused of larceny may be advised in this particular, and be prepared to answer thereto, and also that the accused may thereafter be able to plead a judgment of conviction or acquittal as an adjudication.State v. Kiefer, 172 Iowa, 306, 151 N. W. 440.

[10][11][12] Furthermore, if the act charged in the indictment is fully identified, and the facts are alleged in such manner that the possibility of ownership in the accused is rebutted, he is not in a position to claim prejudice.State v. Congrove, 109 Iowa, 66, 80 N. W. 227.Although the devisees herein were not entitled to possession as against a duly appointed executor or administrator, they had an undivided interest in the estate subject to the payment of estate debts, if any, and the costs of administration.There is no larceny without trespass upon the property rights of another.State v. Clark, 141 Iowa, 297, 119 N. W. 719.Nonconsent is bottomed upon this principle.An indictment cannot be aided by intendment, and the essential facts as alleged must be proved.State v. Ashpole, 127 Iowa, 680, 104 N. W. 281.It is only when the variance between the allegations of an indictment and the proof offered is regarded as material that the variance is fatal....