State v. Pugsley

• Decision Date: 04 June 1888
• Citation: 38 N.W. 498,75 Iowa 742
• Parties: STATE v. PUGSLEY.
• Court: Iowa Supreme Court

75 Iowa 742

38 N.W. 498

STATE

v.PUGSLEY.

Supreme Court of Iowa.

June 4, 1888.

Appeal from district court, Decatur county; JOHN W. HARVEY, Judge.

Indictment against C. S. Pugsley for the unlawful disinterment and removal of the body of Arthur Lynch from a certain cemetery. Verdict of guilty and judgment accordingly. Defendant appeals.J. L. Brown, Laughlin & Campbell, and E. W. Curry, for appellants.

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

SEEVERS, C. J.

1. The defendant took the deposition of one Stevens, and the state, on cross-examination, asked the witness certain questions, which, and the answers thereto, are as follows: “Where are you now living? Answer. Bedford. What are you doing there? A. Waiting for court to come. Where are you stopping at this time? A. I am in the jail of Taylor Co. How long have you been in jail? A. Since the last part of February.” To the last two questions the defendant objected when the deposition was taken, and filed a motion to strike the same out of the deposition. This motion was overruled, and the foregoing questions and answers were read to the jury. It was conceded, when the deposition was taken, the witness had been indicted for larceny, and was confined in jail on such charge; but there was no evidence tending to show that he had been convicted or even tried. Counsel for the defendant insist that the object and purpose of the questions asked, and the evidence elicited in response thereto, was to disgrace the witness, cast suspicion on and weaken his evidence in chief, and that the mere fact a person had been indicted and is confined in jail has no tendency to impair his credibility as a witness, or to impeach his moral character. In support of these views People v. Elster, 3 Pac. Rep. 884;Same v. Hamblin, 8 Pac. Rep. 687;Kitteringham v. Dance, 58 Iowa, 632, 12 N. W. Rep. 612;Slocum v. Knosby, 30 N. W. Rep. 18,--are cited. The two last cases, clearly, are inapplicable, and in the former the witness, in substance, was asked whether he had ever been arrested for a felony, and he was compelled to answer the question asked. This was held to be erroneous because the evidence had no tendency to impeach the credibility of the witness. The case at bar is essentially different. It is competent to ask a witness what is his occupation, and where he resides; and such is the settled practice in this state. Therefore it follows that if, in answer to competent questions so framed as to elicit the information just stated, the facts disclosed have a tendency to disgrace the witness, affect his credibility, or weaken his evidence, no just complaint can be made that such effect is produced, for the reason that it is an incidental consequence which follows or results from the introduction of competent evidence.

2. The evidence clearly shows that Mormontown cemetery is situate in Taylor county, but within 500 yards of the line between it and Ringgold county. It will be observed that the indictment charges the criminal act was committed in the last-named county; and it is provided by statute, “when a public offence is committed on the boundary of two or more counties, or within five hundred yards thereof, the jurisdiction is in either county.” Code, § 4160. Counsel for the defendant contend that the offense charged is of a local and not of a transitory character; that it is like burglary, which of necessity must be committed by breaking into a building, which must be described as being situate in some county; and so here the cemetery from which the disenterment is made, must be properly described as being situate in a county; and the offense must be proved as stated in the indictment; that the fact that the cemetery is within 500 yards of the county line is immaterial, unless the indictment so charges. In other words, the defendant claims that he cannot be tried in Ringgold county for an offense committed in Taylor county; unless it is charged in the indictment that the offense was committed in the last-named county, and within 500 yards of the boundary line between it and Ringgold county. In support of this proposition, the following authorities are cited: People v. Slater, 5 Hill, 401;Haskins v. People, 16 N. Y. 344;People v. Scott, 15 Pac. Rep. 384;Miles v. State, 5 S. W. Rep. 250;Chevarrio v. State, 15 Tex. App. 390. The contention of the attorney general is that the statute in express terms gives the court in either county jurisdiction of the offense, and therefore it may be well charged to have been committed in one county, and the defendant convicted when the evidence shows it was committed in the other, but within 500 yards of the boundary line. He cites and relies on State v. Robinson, 14 Minn. 451, (Gil. 333.) The indictment in that case was found in and by a grand jury of the county of Carver, and it charged the offense was committed “in the county of Scott, in the state of Minnesota, within one hundred rods of the dividing line between said county of Scott” and the county of Carver. There is a statute in Minnesota which provides that “offenses committed on the boundary lines of two counties, or within one hundred rods of the dividing line between them, may be alleged in the indictment to have been committed in either of them, and may be prosecuted and punished in either county.” The indictment was held to be sufficient, and there is no doubt the holding is correct. As we understand, however, the court went further, and held that the indictment would have been sufficient if it had simply alleged the offense had been committed in the county of Carver. This last holding is, however, clearly dictum. There was no such question before the court. It is provided by statute that no indictment shall be deemed insufficient, nor can the trial, judgment, or other proceedings be affected by “any matter which was formerly deemed a defect or imperfection, but which does not tend to prejudice the substantial rights of the defendant on the merits.” Code, § 4306. A majority of the court are of the opinion that, under this statute, the failure of the pleader to state accurately the place where the offense was committed, was in no respect prejudicial. The thought being that the only reasons for so stating the place are-- First, that the defendant may be informed with sufficient certainty of the particular offense charged, and while it may be considered that, ordinarily, the place where a local offense is committed is an important factor in the description of the offense, yet as in this case the cemetery, or place where it was committed, is stated, the thought is that the substantial rights of the defendant were not prejudiced by locating it in the wrong county; secondly, although the place is wrongly stated, the defendant could readily, had he been acquitted and again indicted, show by parol that the two offenses were in fact the same. In these views the writer hereof is unable to concur, for the reasons that in such case the defendant might be indicted in Taylor county, and in such case the indictment would accurately describe the offense as having been committed in that county. Upon introducing parol evidence to establish the identity of the two offenses, he would be met with the objection that the indictments charged the offenses in two different counties. It must be conceded, I think, that there are doubts whether, in such case, parol evidence would be admissible to contradict the indictment. But, conceding it would be, it has always been held the county or district in which the crime was committed was within the jurisdiction of the court should be accurately stated, and that the proof must sustain such allegation. Queen v. Mitchell, 2 Adol. & E. 636. When the place, county, or district is correctly stated in the indictment, the defendant is not driven to the necessity of introducing oral evidence, which he may or may not be able to obtain; but his plea of a former acquittal ordinarily is sustained by the introduction in evidence of the record in the former case. He therefore, in such case, it seems to me, is prejudiced by the failure of the indictment to state that the offense was committed in Taylor county within 500 yards of the boundary line between it and Ringgold county. The name given to the cemetery makes no difference, unless it intensifies the error of the court, because it is described as being in Ringgold county, and there is nothing in the record which tends to show there is not such a cemetery in that county.

3. It is urged with much force and vigor that section 4160 of the Code is unconstitutional, for the reason that the...