State v. Ruby

• Decision Date: 05 June 1883
• Citation: 15 N.W. 848,61 Iowa 86
• Parties: STATE OF IOWA v. RUBY.
• Court: Iowa Supreme Court

61 Iowa 86

15 N.W. 848

STATE OF IOWA

v.RUBY.

Supreme Court of Iowa.

Filed June 5, 1883.

Appeal from Keokuk district court.

The defendant was convicted of the crime of burglary and now appeals to this court. The facts of the case involved in the questions decided are stated in the opinion.Sampson & Brown, for appellant.

Smith McPherson, Atty. Gen., for the State.

BECK, J.

1. The indictment is in two counts; the first charging that defendant, with others, “at the county of Keokuk and state of Iowa, on the second day of February, A. D. 1881, and in the night–time of said day, to–wit, at about 11 o'clock, did willfully * * * break and enter the dwelling house of one J. S. Jones, * * * with felonious intent * * * to then and there * * * feloniously steal,” etc. The second count charges that defendant, with others, “on the second day of February, A. D. 1881, and at the county of Keokuk and state of Iowa, and at about the hour of 11 in the night–time of said day, did willfully * * * break and enter the dwelling house of J. S. Jones * * * with the felonious intent to * * * steal,” etc.

Counsel for defendant insist that the first count charges a breaking and entering in the day–time, and the second charges the same act done in the night–time, and that the indictment, therefore, charges distinct offenses in the separate counts. This position is based upon the thought that the words “and in the night–time of said day,” are an independent allegation of time expressed by the averment that the act was done upon the second day of February. In our opinion the position is erroneous, and the words have just the effect which counsel insist they do not have. They limit the allegation of time to the night of the day mentioned. Each count plainly charges the act to have been committed in the night–time.

2. The indictment was not signed by the district attorney, and for this reason it is claimed by counsel to be bad. There is no requirement of the statute that the indictment shall be signed by the district attorney, further than the form presented by Code, § 4297, shows the signature of that officer. But this section is not a positive requirement that indictments shall follow the precise form prescribed. It provides that they shall follow it “substantially;” that is, the substance of the indictments shall be the same as that pointed out in the form. The substance pertains to the allegations, not to the signature. The indictment before us, therefore, does not fail to conform in substance to the requirements of the statute, and cannot be assailed by demurrer. Code, §§ 4297, 4305, 4352. Nor is the defect a ground for a motion of arrest. Section 4491. We conclude that counsel's objections to the indictment was not well taken.

3. Evidence was introduced, against defendant's objection, showing that while ...