State v. Wrand

Ladd, J. 1 In the indictment, ownership of the building entered) and of the goods intended to be stolen, is laid in James A. Morrow. The proof showed that these belonged to, and were in possession of, John A. Morrow. Was this a fatal variance ? As it was not necessary to allege or prove who owned the goods, State v. Jennings, 79 Iowa, 514, a mistake in pointing out the true' owner thereof will be disregarded (Code section 5290); State v. Ean, 90 Iowa, 534; State v. Ormiston, 66 Iowa, 143; State v. Ansaleme, 15 Iowa, 44; State v. Schilling, 14 Iowa, 455). The owner of the building must be averred in an indictment for burglary. State v. Morrisey, 22 Iowa, 158. But this court has uniformly held, under section 5286 [75] of tbe Code, that, in the absence of any prejudice, an erroneous allegation of the name of the party injured is immaterial. The following cases are precisely in point. State v. Carr, 43 Iowa, 420; State v. Crawford, 66 Iowa, 318; State v. Porter, 97 Iowa, 450. The store of John A. Morrow, at Garwin, was broken and entered at the time alleged, and some of the goods then taken therefrom were found in the possession of the defendants. With several others, they were in town the day before — pedestrians wandering about without visible calling. No prejudice whatever resulted from the mistake in the Christian name of the owner. 2 II. The grand jury based the indictment entirely on minutes returned by the committing magistrate, and, as required by section 5272 of the Code, “a brief minute of the substance of the evidence” was written by its clerk, and returned with it. This, in narrative form, concisely stated the facts. Objection was made to each witness on the ground that minutes of his testimony were not attached to the indictment. As an illustration, we set out that portion concerning Powderly and Watson: “That on or about the 13th day of April, O. C. Powderly, marshal of Peinbeck, Iowa, apprehended the defendants, together with four other men, in the stock yards at Peinbeck. The defendant Lorraine was the first one arrested, and upon his person ■ was found a piece of black veiling and a portion of a bolt of dress goods, which were identified by Mr. Morrow as part of the stolen property, and were introduced in evidence, and marked Exhibits A and B. On or about the same day the defendants Wrand and Ilowley sold to George E. Watson, of Peinbeck, Iowa, a coat and vest, which were identified as being a portion of the stolen property, and were introduced in evidence, and marked Exhibit 0.” Very evidently, these facts were extracted from the minutes of the justice, and were testified to by these witnesses. Not the substance of the evidence, but a brief minute thereof, is required; and we think that the defendants were not only advised by this min [76] ute, in connection witb the names indorsed on the indictment, of the names of the witnesses the state would call, but of the matters relating to .which they would speak. The .mere brevity of the evidence furnishes no reason for its exclusion. State v. Van Vleet, 23 Iowa, 27; State v. Bowers, 17 Iowa, 48. Nor was the state confined to such minutes in 3 examining the witnesses. State v. McCoy, 20 Iowa, 262; State v. Ostrander, 18 Iowa, 435. 4 III. The sheriff detected the defendants, while in jail, attempting to escape by sawing the iron bars of their cell. They insist the evidence of this was inadmissible, because tending to prove a distinct offense. True, the commission of another crime may not be proven for the sole purpose of showing that the defendant would be the more likely to have committed that charged. State v. Rainsbarger, 71 Iowa, 746. See State v. Brady, 100 Iowa, 191. But if the evidence is material and relevant to the issue, the mere fact that it tends to establish guilt of a crime other than the one alleged furnishes no ground for its rejection. People v. Place, 157 N. Y. App. 584 (52 N. E. Rep. 576). That an attempt to escape is a circumstance proper to be shown and considered by the jury, is put beyond controversy by the authorities. State v. James, 45 Iowa, 412; State v. Arthur, 23 Iowa, 430; State v. Ruby, 61 Iowa, 86; State v. Stevens, 67 Iowa, 558. 5 IV. The black veiling and a piece of dry goods found on Lorraine, jointly indicted with defendants, were properly received in evidence. These were identified as taken from the store at the same time as the coat and vest defendants had sold. All were seen together before and after the burglary — Affirmed.