State v. Stack
| Decision Date | 07 April 1936 |
| Docket Number | 43238. |
| Parties | STATE v. STACK. |
| Court | Iowa Supreme Court |
Appeal from District Court, Dubuque County; P. J. Nelson, Judge.
The defendant was indicted, tried, and convicted of the crime of breaking and entering, and has appealed from rulings on demurrer, motion in arrest, and motion for new trial based wholly upon sufficiency of the indictment.
Affirmed.
Walter Koerner, of Dubuque, for appellant.
Edward L. O'Connor, Atty. Gen., and Walter F. Maley, Asst. Atty Gen., for the State.
The grand jury of Dubuque county, Iowa, returned an indictment against the defendant the charging part of which was as follows: " The Grand Jurors of the County of Dubuque, in the name and by the authority of the State of Iowa, accuse Edward Stack of Breaking and Entering, and charge that the said Edward Stack in the County and State aforesaid did, on or about November 29, 1934, break and enter the Hartig Drug Company store at First and Locust Streets in the City of Dubuque, Iowa, contrary to and in violation of section 13001 of the Code of Iowa for 1931."
The defendant filed a demurrer questioning the sufficiency of the indictment, stating that the indictment does not conform to the requirements of the Code of Iowa, and that no crime is charged therein. This demurrer was overruled and a plea of not guilty was entered by the defendant. The cause proceeded to trial resulting in a verdict finding the defendant guilty of the crime charged, upon which judgment and sentence was pronounced.
The evidence was amply sufficient to show the defendant's guilt and upon which to base the verdict of guilty. No question is raised in the appeal as to the sufficiency of the evidence or as to the instructions of the court.
The defendant's motions in arrest of judgment and for a new trial, based upon the same grounds as was his demurrer to the indictment, were overruled by the court, and the defendant has appealed from the rulings on the demurrer, the motion in arrest of judgment, and the motion for a new trial.
The one question that is presented for our determination is as to the sufficiency of the indictment. The defendant contends that the indictment does not substantially conform to the statutory requirements for the reason that it does not include the statement that the breaking and entering was done " with intent to commit any public offense," and that without this allegation breaking and entering is not a crime.
Section 13001 of the Code, under which the indictment is drawn provides as follows: " If any person, with intent to commit any public offense, in the daytime break and enter, or in the nighttime enter without breaking, any dwelling house or at any time break and enter any office, shop, store, warehouse, railroad car, boat, or vessel, or any building in which any goods, merchandise, or valuable things are kept for use, sale, or deposit, he shall be imprisoned in the penitentiary not more than ten years, or be fined not exceeding one hundred dollars and imprisoned in the county jail not more than one year."
Chapter 638 of the Code (section 13732 et seq.) now provides for the so-called " short form" of indictment, and sections 13732-c1, 13732-c2, 13732-c3, 13732-c33 provide for the form of indictments charging various statutory offenses. Many of the statutes defining crimes and providing for the punishment include the phrase " with intent to commit any public offense." For illustration, see the definition of burglary as contained in section 12994, " If any person break and enter any dwelling house in the nighttime, with intent to commit any public offense," etc . (Italics supplied.)
Section 12997 defining " burglary by means of explosives," " Any person who, with intent to commit crime, breaks and enters," etc. (Italics supplied.)
Section 12998. Burglary by means of electricity, " Any person who, with intent to commit crime, breaks and enters," etc. (Italics supplied.)
Section 13000. Possession of burglar's tools. " If any person be found having in his possession at any time any burglar's tools or implements, with intent to commit the crime of burglary," (Italics supplied) and,
Section 13001, the section under consideration here, " If any person, with intent to commit any public offense * * * break and enter," etc. (Italics supplied.)
The short form of indictment specifically prescribed by statute, section 13732-c1, provides and sets out an indictment for burglary in the following language: " The grand jurors of the county of Polk accuse John Doe of burglary and charge that on or about the 1st day of December, 1928, John Doe committed burglary of the dwelling house of Richard Roe."
Section 13732-c2 provides that the indictment may charge, and is valid and sufficient if it charges, the offense for which the accused is being prosecuted in one or more of the following ways: And this section further provides: " The indictment may refer to a section or subsection of any statute creating the crime charged therein, and in determining the validity or sufficiency of such indictment regard shall be had to such reference."
Section 13732-c3 provides: " No indictment which charges the offense in accordance with the provisions of section 13732-c2 shall be held to be insufficient on the ground that it fails to inform the defendant of the particulars of the offense."
Section 13732-c33 provides forms which may be used in cases in which they are applicable, and in this we find that burglary may be charged in the following language: " A. B. committed burglary of the dwelling of C. D." And this is under section 12994 defining the crime of burglary, which section includes the phrase " with intent to commit any public offense." Similar prescribed...
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