State v. Potter

• Decision Date: 07 March 1922
• Docket Number: No. 34264.,34264.
• Citation: 186 N.W. 919
• Parties: STATE v. POTTER.
• Court: Iowa Supreme Court

186 N.W. 919

STATE

v.POTTER.

No. 34264.^a1

Supreme Court of Iowa.

March 7, 1922.

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.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 the stolen notes, if lost and nonproducible. In the instant case the notes in question were lost instruments, and consequently were not produced upon the trial.

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

[5][6] Who were the persons in whom the ownership of the alleged stolen property was predicated? Were they the owners or were they entitled to the possession of said notes? The alleged owner must be the true owner or at least hold such qualified title to the chattel or chose in action as to entitle him to the possession thereof. See State v. Tillett, 173 Ind. 133, 89 N. E. 589, 140 Am. St. Rep. 246, 20 Ann. Cas. 1262;Peck v. State, 54 Tex. Cr. R. 81, 111 S. W. 1019, 16 Ann. Cas. 583; Hensley v. Com., 1 Bush (Ky.) 11, 89 Am. Dec. 604. 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 title sufficient to entitle him to the possession thereof, and upon which an allegation of ownership may be predicated in an indictment for larceny.

With these propositions in mind let us examine the evidence in the instant case and determine whether there was a fatal variance between the indictment and the proof offerred 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 devisee David L. Stetson died subsequently to the testator, Fred B. Stetson, but the date of his death is not disclosed by the record. Furthermore, whether the devisee Stetson died testate or intestate is not shown; neither is it disclosed who were his legatees or heirs at law.

It is not claimed nor does the testimony show that the notes in question were ever in the possession of the persons named as owners in the indictment. An executor was named in Fred B. Stetson's will, and on April 2, 1918, the person so nominated qualified as such executor.

[7] The executor was legally entitled to take charge of all personal property belonging to the estate of Fred B. Stetson. The devisees were not entitled to the possession of these notes and could not have maintained an action against the executor for possession of them. Briefly stated the devisees were not the owners nor were they entitled to possession. Their interest was an undivided interest in the proceeds of the estate after debts of the estate and the costs of administration had been paid. Without the consent of the executor no person could rightfully take possession of the notes.

This seems to have been recognized by counsel for the state upon the trial of this case, and the executor, Hicklin, answered as a witness:

“I never authorized George Potter or any one for him to take the notes away from the estate.”

The state proved ownership and the right to possession of the notes in Hicklin as executor and none other. The ownership of the notes as laid in the indictment was not proved. The legal possession of the notes was in the executor. It was he who had a special property therein. This thought cannot be put aside, and the principle must be observed in dealing with the question under consideration.

[8] We must observe critical distinctions in charging a person with a crime. Anglo-Saxon jurisprudence has given us two dominant rules: (1) That every case must have a well-defined issue; and (2) that the best evidence of which the case is susceptible must be produced, and it must be pertinent to the issue.

[9][10] 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. If the variance between the allegations of an indictment and the proof offered is to be regarded as material, the conclusion necessarily follows that it is fatal. State v. Kiefer, 172 Iowa, 306, 151 N. W. 440.

[11] There must be proof beyond a reasonabledoubt of every essential ingredient of the crime charged. Guilt is based on legal definition and proof, and nothing is left to inference, intendment, or presumption. The trial court recognized this principle and in an instruction told the jury:

“That it was incumbent upon the state, before a conviction could be had, to prove beyond a reasonable doubt: (a) That the property in question was the property of the person named in the indictment.”

The prosecution failed in its proof in this particular, and therefore the motion in arrest of judgment should have been sustained.

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