State v. Sampson

• Decision Date: 19 November 1912
• Citation: 157 Iowa 257,138 N.W. 473
• Parties: STATE v. SAMPSON.
• Court: Iowa Supreme Court

157 Iowa 257

138 N.W. 473

STATE

v.SAMPSON.

Supreme Court of Iowa.

Nov. 19, 1912.

Appeal from District Court, Cerro Gordo County; J. F. Clyde, Judge.

From a judgment convicting him of larceny from a dwelling the defendant appeals. Reversed.F. A. Ontjes, of Mason City, for appellant.

George Cosson, Atty. Gen., and John Fletcher, Asst. Atty. Gen., for the State.

LADD, J.

[1] The accused, with Charles Bergman and Hans Olson, occupied the same room at 205 Hoyt street, in Mason City, and had done so for several weeks. In the evening of February 17, 1911, he retired at about 10 o'clock, and the others shortly afterwards, and, after they had fallen asleep, he arose, dressed, and, seizing Olson's watch from the dresser and Bergman's purse containing $42 from his trunk, departed. He was subsequently arrested and two informations filed with a justice of the peace, the one, sworn to by Olson, charging him with petit larceny of the watch and the other, sworn to by Bergman, alleging the larceny of the money from a dwelling. He pleaded guilty to both informations, and was immediately sentenced to serve a term of 30 days in the county jail on the former charge, and bound over to the grand jury on the latter, and was later indicted for the offense of larceny from a dwelling house. When put on trial, he pleaded his conviction of larceny of the watch by the justice as a bar to his prosecution under the indictment. On this issue, the court instructed that, “if in point of time and circumstances the taking of the watch and money was done on a single act or transaction, then there was but one crime, and your verdict must be for the defendant. But, if you find from the evidence that in point of time and circumstances the taking of the watch and money were done as separate acts and transactions, and not a single act or transaction, then the conviction of the crime of larceny of the watch would not bar a conviction of larceny of the money described in the indictment.” Appellant insists that no such issue was raised by the evidence, and in this we concur. The taking was from the same room, and, though the watch was stolen from the dresser and money from the trunk, these were parts of the same transaction perpetrated at the same time. That an instant or several minutes may have intervened between seizing the watch and the purse can make no difference if these were a part of the same transaction wherein the accused carried out his design of stealing these articles. Nor does the circumstance that the property belonged to different persons render the transaction divisible into two offenses. The state may not split up and prosecute separately distinct parts of the same crime. Undoubtedly, many authorities may be found holding that where a man simultaneously takes two or more articles belonging to different persons, even though at the same time, he may be separately prosecuted for the taking from each owner.

In State v. Thurston, 2 McMul. (S. C.) 382, the prisoner stole cotton belonging to three different persons, and the conviction of larceny in stealing that of one was held not to be a bar to prosecutions for theft from the others, saying “the stealing of the goods of different persons is always a distinct felony, or may at least be so treated by the solicitor, if in his discretion he thinks proper so to do.” See, also, Commonwealth v. Sullivan, 104 Mass. 553;U. S. v. Beerman, 5 Cranch, 420, Fed. Cas. No. 14,560. But these and like decisions in England have not been followed generally in this country. In State v. Emery, 68 Vt. 109, 34 Atl. 432, 54 Am. St. Rep. 878, the court states the rules sustained by the clear weight of authority as follows: “The theft of several articles at one and the same time and place, and by one and the same act, constitutes but one indivisible crime, even though the articles belong to different owners; and the judgment of conviction or acquittal of the theft of one of the articles is a bar to a prosecution for the theft of the others. A prosecution and conviction or acquittal for any part of a single crime bars any further prosecution based upon the whole or a part of the same crime. It is equally well settled that if, on the same expedition, there are several distinct larcenous takings, as taking the goods of one person at one place, and afterward taking the goods of another person at another place, and so on, as many crimes are committed as there are several and distinct takings.” In Lurton v. State, 7 Mo. 55, 37 Am. Dec. 179, the larceny was of goods belonging to Curle and Gibson, and instructions embodying the above principles were refused, and this was held to be error. See, also, State v. Morphin, 37 Mo. 373. In State v. Hennessey, 23 Ohio St. 339, 13 Am. Rep. 253, conviction was reversed on the same ground; the court saying: “The particular ownership of the property which is the subject of a larceny does not fall within the definition, and is not of the essence of the crime. The gist of the offense consists in feloniously taking the property of another; and neither the legal nor the moral quality of the act is at all affected by the fact that the property stolen, instead of being owned by one or by two or more jointly, is the several property of different persons. The particular ownership of the property is charged in the indictment, not to give character to the act of taking, but merely by way of description of the particular offense.” In Hudson v. State, 9 Tex. App. 151, 35 Am. Rep. 732, the prisoner was accused of the theft of a gold watch of Mrs. Hurndall taken from her room, and pleaded in bar a conviction of the theft of money and goods of her son taken from another room in the same house on the same night. On the trial the prisoner requested the court to instruct that, “when a variety of articles are stolen at the same time and from the same place and from the same or different persons, it is only one offense.” The court gave the instruction, with this qualification added: “The proof must show, before the jury can consider a transaction to constitute only one offense, that the articles stolen were in possession of...