State v. Rivers

• Decision Date: 18 January 1882
• Citation: 13 N.W. 73,60 Iowa 381
• Parties: STATE v. RIVERS
• Court: Iowa Supreme Court

13 N.W. 73

60 Iowa 381

STATE v. RIVERS

Supreme Court of Iowa, Des Moines

January 18, 1882

Appeal from Dallas Circuit Court.

THE defendant was indicted for larceny.He was tried, convicted and sentenced to the penitentiary for eighteen months, and he appeals.

AFFIRMED.

C. C Cole and A. R. Smalley, for appellant.

Smith McPherson, Attorney-general, for the State.

OPINION

ROTHROCK, J.

I.

The indictment was presented on the sixth day of November, 1880 and it was charged therein that the defendant on the first day of September, 1880, stole three hundred bushels of flax seed, and five hundred bushels of oats, the property of Stephen Adams.

The grain which it is claimed the defendant stole was grown upon a farm in Dallas county, which, we infer from the abstract, the defendant once owned or had an interest in, but upon which there was a mortgage which had been foreclosed, and the property sold, and a sheriff's deed made therefor.Afterwards action was taken by the holder of the sheriff's deed to obtain possession of the premises.Pending this action, certain parties were in possession of the land as tenants of some one, but of whom does not clearly appear from the abstract.The tenants, either pending this action for possession or before it was commenced, sowed part of the farm in flax and oats.Pending the action, and on the twenty-fourth day of April, 1880, Stephen Adams was appointed receiver in said action, to take charge of the real estate in controversy pending the suit.Afterwards, on the twenty-seventh day of July, 1880, a further order of the court was made, directing the receiver to take charge of and control the crops upon the farm, and to harvest and dispose of the same, and to render an account of his doings in the premises.

It is claimed by the State that, after said appointment, and after Adams was authorized to take possession and control of the crops, he went upon the premises and made a contract with the tenants by which they were to harvest and thrash the oats and flax, and keep an account of the expense thereof, and haul the grain to market at a specified price per wagon load; and that, being thus in possession of the grain, the defendant by stealth caused some of it to be concealed under hay and straw in a slough, and in a cave, and hauled nearly all of it to market, and sold it as his own, and appropriated the proceeds to his own use.

In the trial of the case in the court below, no record evidence was introduced showing that Adams had given bond and qualified as receiver.He was permitted to testify as a witness that he had so done, and this is made the ground of complaint by appellant.We think that there was no necessity upon the part of the State to prove that a bond had been given by Adams, and that he was sworn as receiver.That he was an acting receiver under a proper order of the court, and that defendant, long before the commission of the acts with which he is charged, knew that he was so acting, abundantly appears from the evidence.The defendant was arrested and imprisoned for contempt in resisting the receiver, before it is claimed he committed the larceny.

II.Section 3915 of the Code is as follows: "If any person knowingly, and without authority of law, take, carry away, secrete or destroy any property or chattels, while the same are in the lawful custody of any sheriff, coroner, marshal, constable or other officer, and rightfully held by such officer by virtue of any execution, writ of attachment, or other legal process issued under the laws of Iowa he shall be deemed guilty of larceny, and shall be punished, when the value of the property so taken, carried away, secreted or destroyed exceeds the sum of twenty dollars, by imprisonment in the penitentiary not more than one year; and when the value of the same does not exceed twenty dollars, by fine not exceeding one hundred dollars, etc."

It is urged that this is the only section of the statute under which the defendant could have been indicted, tried and convicted.We think that this cannot be so, because a receiver does not hold property under what is denominated a legal process issuing out of any court.He holds no process whatever.He acts under an order of the court, and he is not an officer within the meaning of that section.

III.It is further claimed that as Adams merely held the property as receiver, the ownership cannot be laid in him, but should be laid in the name of the real owner; that the appointment of the receiver did not divest the owners of the right of possession or the ownership of the property.This may be conceded to be correct, if the receiver was not in possession of the property when it was taken by the defendant.If he was in possession of the property, and it was stolen, the ownership might well be laid in him in an indictment.Where a person has a special property in a thing which has been stolen, the property in an indictment for its larceny may be laid in the special or general owner, and a party having mere possession as bailee or pledgee of property has such an interest therein that the ownership, may be laid in him in an indictment for its larceny.Bruley v....