State v. Jelinek

Kinne, J. 1 I. Appellant contends that the ownership of the building which was broken into was not proven as laid. The property is thus described in the indictment: “A certain store, known as the ‘Grange Store,’ at Belle Plaine, Iowa, of W. A. Parris, Geo. Straben, W. Ealy, -Ealy, Dave Rosterson, H. W. Vandike, J. P. Vandike, and S. P. Vandike, Wm. Dixon, and the minor heirs of H. Guinn, in which goods, wares, and merchandise were kept for sale, use, and deposit.” ,The evidence showed that the building broken into was known as the “Grange Store.” One witness testified on direct examination that the Grange Store was a stock company, and belonged to the parties named in the indictment. On cross-examination he said he thought it was incorporated, and the incorporators were the parties named. Our statute provides that an indictment is sufficient if it can be understood therefrom “that the act or omission charged as the offense, is stated with such a degree of certainty, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended, and the court to pronounce judgment upon a conviction according to the law of the case.” “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 to it, that it be so stated in the indictment.” Code, section 4305. It is true that we held in State v. Morrissey, 22 Iowa, 158, that the name of the owner of the building, if known, should be stated in the indictment. That was a case where the name of owner of the building was not given. The object of the statute requiring the name of the owner to be stated is to fix the identity of the particular building broken into, and such is the thought of the opinion in the case cited. This is 422 necessary, that the defendant may know with reasonable certainty the charge that is made against him. The statute provides, “When an offense involves the commission of, or an attempt to commit, an injury to person or property, and is described in other respects with sufficient certainty to identify the act, an erroneous allegation as to the name of the person injured, or attempted to be injured, is not material. Code, section 4302. In State v. Carr, 43 Iowa, 418, it was held' that a mistake in the name of the person injured, in an indictment for robbery, is not material, unless it is shown that the accused has been prejudiced thereby. In State v. Golden, 49 Iowa, 51, the indictment charged the building broken into to be the property of George F. Howe. The evidence showed that Howe was a renter, only, of the property, and in possession of it. It was held a sufficient proof of ownership. In State v. Franks, 64 Iowa, 39 [19 N. W. Rep. 832,] in an indictment for burglary, it charged that the house belonged to, and was the property of, the estate of W. F. Rodman, deceased. It was held good. See State v. Emmons, 72 Iowa, 265 [38 N. W. Rep. 672]. In State v. Semotan, 85 Iowa, 57 [51 N. W. Rep. 1161], in the case of án indictment charging the defendant with having injured and ■defaced a building, it is said: “The indictment states that the offense was committed upon the hall in the town of Vining; and it appears to- us that this describes ■the offense with sufficient certainty, so. that, if the ownership of the property was erroneously stated to be in a corporation* the variance was not fatal.” All of the evidence shows that the building was known as the “Grange Store.” The names of the parties owning it, whether it be owned by a stock company or corporation, are given. It appears that no prejudice resulted to defendant from a failure to aver the name of the corporation owning the building. 423 2 II. Complaint is made of certain instructions given, and because the court did not instruct as to certain matters. These are without merit. If the instructions given were not deemed full enough by counsel for appellant, he should have ashed others. None were ashed touching the matters herein referred to. Complaint is also made of the instruction touching the intoxication of the defendant. The jury were told that the intoxication of defendant might be weighed by them, in determining the intent* if any, of the defendant in breaking and entering the store. It is said that the court should have told them that, if they found from the evidence that the defendant was so drunk as to be incapable of forming an intent to break and enter the building, they should find him not guilty. It is doubtful if the testimony in this case warranted an instruction such as counsel contends for, but however that may be, the one given was, under the circumstances, correct, as far as it went; and, if counsel 'desired a more definite statement of the lav/ to be given the jury, he should have asked an instruction embracing it. Having failed to do so, he cannot now be heard to object, inasmuch as the instruction, as given,” correctly stated the law, ,and was applicable to the facts. It appears to us that, in all respects, the defendant had a fair trial. — Affirmed.