State v. Wasson

• Decision Date: 11 January 1905
• Citation: 126 Iowa 320,101 N.W. 1125
• Parties: STATE v. WASSON.
• Court: Iowa Supreme Court

126 Iowa 320

101 N.W. 1125

STATE

v.WASSON.

Supreme Court of Iowa.

Jan. 11, 1905.

Appeal from District Court, Linn County; W. N. Treichler, Judge.

The defendant was convicted of the crime of robbery, and appeals. Reversed.James H. Trewin and Edmund Nichols, for appellant.

Chas. W. Mullan, Atty. Gen., and Lawrence De Graff, Asst. Atty. Gen., for the State.

SHERWIN, C. J.

The indictment charges that the defendant assaulted Thomas Malone, “and, with force and violence, willfully and feloniously did steal, take, and carry away from the person” of said Malone the sum of $75. The indictment does not otherwise allege the ownership of the property, and its sufficiency is assailed because thereof. Section 4753 of the Code provides: “If any person, with force or violence, or by putting in fear, steal and take from the person of another any property that is the subject of larceny, he is guilty of robbery.” The offense thus created by the statute embraces all of the elements essential to the crime under the common law. 2 Cooley's Blackstone (4th Ed.) § 242. Under the statute, as well as by the common law, robbery is larceny committed by violence from the person of one put in fear. Lord Hale defined it as “the felonious and violent taking of any money or goods from the person of another, putting him in fear, be the value thereof above or under one shilling.” 1 Hale, P. C. 532. In 2 Bishop's Criminal Law, § 1158, it is said that robbery is a mere compound larceny. It is larceny aggravated by the matter which by the common law or by the statute makes it robbery. The crime, as defined by the statute, includes larceny from the person, and one who is indicted for the former may be convicted of the latter offense. State v. Reasby, 100 Iowa, 231, 69 N. W. 451;State v. Mikesell, 70 Iowa, 178, 30 N. W. 474;State v. Graff, 66 Iowa, 482, 24 N. W. 6. In proceeding under the common law, it is necessary to allege and prove ownership, precisely as in larceny, and such has been held to be the rule where it is a statutory crime. 2 Bishop's Criminal Proc. 1006; McClain's Crim. Law, § 481; 18 P. & P. 1223; People v. Ammerman, 118 Cal. 23, 50 Pac. 15;Brooks v. People, 49 N. Y. 436, 10 Am. Rep. 398;Com. v. Clifford, 8 Cush. 215;State v. Morgan (Wash.) 71 Pac. 723;State v. Dengel, 24 Wash. 49, 63 Pac. 1104;Boles v. State, 58 Ark. 35, 22 S. W. 887. To constitute the crime of robbery, there must be larceny from the person, within the meaning of the law. There can be no larceny or robbery where a person takes his own property, or where he takes the property under a bona fide belief that it is his own. In other words, it is essential that the taking be animo furandi. State v. Hollyway, 41 Iowa, 200, 20 Am. Rep. 586. It is the general rule, and the rule in this state, that an indictment charging larceny, simple or compound, must allege the ownership of the property. State v. Cosgrove, 109 Iowa, 68, 80 N. W. 227;State v. Mullen, 30 Iowa, 203;State v. Morrissey, 22 Iowa, 158. In State v. Cunningham, 21 Iowa, 433, the indictment charged larceny from the person, and alleged the ownership of the property to be in the person from whom it was taken, while the proof showed that it belonged to him and his partner. This was held sufficient, but we there recognized the necessity of the allegation of ownership. The presumption of guilt arising from the recent possession of stolen property applies in robbery as well as in larceny. State v. Harris (Iowa) 66 N. W. 728. Section 5289 of the Code requires that, when material, the name of the person injured or attempted to be injured be set forth, when known to the grand jury, or, if not known, that it be so stated in the indictment. In State v. McConkey, 20 Iowa, 574, this requirement of the law was applied to an indictment for trespass, and the indictment held bad because the ownership of the land on which the trespass was committed was not alleged. While it is generally sufficient to charge an offense in the language of the statute, such is not the rule when the statute does not necessarily charge the offense named. State v. Curran, 51 Iowa, 112, 49 N. W. 1006;State v. Butcher, 79 Iowa, 110, 44 N. W. 239;Quinn v. C., B. & Q. Ry. Co., 63 Iowa, 510, 19 N. W. 336....