State v. Struble

• Decision Date: 03 March 1887
• Parties: STATE v. STRUBLE.
• Court: Iowa Supreme Court

71 Iowa 11

32 N.W. 1

STATE

v.STRUBLE.

Supreme Court of Iowa.

March 3, 1887.

Appeal from district court, Monona county.

The defendant, Frank Struble, was jointly indicted with Thomas Struble and John McBride. They were charged with having broken and entered the dwelling-house of one Dr. W. W. Ordway, in Monona county, and in the night-time, with intent to steal and carry away from the house the goods and property of Ordway. They were also charged with having assaulted Ordway with intent to murder him. The defendant, Struble, was tried alone. He entered a plea of not guilty, and also a plea of former acquittal. After the trial had commenced, the state elected to proceed upon the charge alone of having entered the dwelling-house in the night-time, with intent to commit larceny, and filed a motion to dismiss as to the charge of assault with intent to commit murder. The court sustained the motion, and the trial proceeded, and resulted in a verdict of guilty. Judgment of imprisonment for 12 years having been entered upon the verdict, the defendant appeals to this court.G. W. Cooper, for appellant.

S. M. Marsh, A. J. Baker, Atty. Gen., G. W. McMillan, and John S. Monk, for the State.

ADAMS, C. J.

1. The defendant insists that the court erred in sustaining the motion of the state to dismiss as to a portion of the matter charged in the indictment. His proposition is that, after a trial has been entered upon, no part of the indictment can be withdrawn from the consideration of the jury without the consent of the defendant. He relies upon Com. v. Jenks, 1 Gray, 490;Com. v. Tuck, 20 Pick. 356;Com. v. Scott, 121 Mass. 34;State v. Callendine, 8 Iowa, 288. The former acquittal relied upon was an acquittal of an assault with an intent to commit murder. The motion by the state for leave to dismiss was as to that charge, leaving the charge of burglary in the indictment, without the aggravating circumstances that it was accompanied by an assault, which circumstance, if it had been properly proved in connection with the burglary, would have justified the court in inflicting a greater punishment. Code, § 3892. The reason which the state had for dismissing as to the charge of assault probably was that it was satisfied that the defendant's plea of former acquittal as to that charge was good. The defendant's theory is that, the trial having once commenced, it was his right to be tried and acquitted of both charges, whereas the state, by dismissing as to the assault with intent to commit murder, leaves that charge undisposed of which he had once prepared himself to meet. But the case has this peculiarity: that the charge of assault, etc., seems to have been made merely for the purpose of bringing the charge of burglary within the provisions of section 3892, above cited. We think that, if the state had become satisfied for any reason that the conviction for the crime of burglary could not be had under that section, it was the right of the state to simplify the case by withdrawing the charge of assault, etc. In our opinion, the court did not err in sustaining the motion.

2. On the night of the second of January, 1885, the dwelling-house of the prosecuting witness was entered by three men, and a trunk was taken therefrom, containing promissory notes and other papers of very large value. The evidence tended to show that the trunk was taken to the residence of the defendant, Frank Struble, and a part of the contents were burned; that afterwards the trunk and part of the contents were taken to a secluded place some miles distant, and left. The number of persons engaged in the commission of the crime was three. The defendants were all debtors of the prosecuting witness, being liable to him upon some of the promissory notes which were destroyed. The court allowed evidence to be given of certain acts of Thomas Struble, a brother of the defendant, Frank Struble, done three or four days after the burglary. The trunk had been carried to a place near the head of a stream, called the Beaver, and left there, where it had become covered with snow, except that the ends of iron hoops with which the trunk had been bound had been partially detached, and protruded above the snow. The sheriff, in going out to search for the trunk, took Thomas Struble in his sleigh with him, and, while searching near where the trunk was, Thomas was the first one to discover the iron hoops protruding above the snow. The defendant complains of the admission in evidence of these acts of Thomas. His position is that the acts at most were the acts of an alleged conspirator, and were done long after the transaction which constituted the alleged...