188 Iowa 1293 | Iowa | 1920
1. It appears 'that, on Sunday night, August 11, 1918, at about 10:30 or 11 o’clock, an automobile, driven by one Peacock, in which Clarence Faulds and Verdie Hos-kinson, the prosecuting witnesses, and one Barker were riding, was held up by two masked men, one tall, the other small. Faulds was robbed of a gold watch and $90 in money, and Hoskinson of a diamond ring. The robbery took place at a bridge between Fairfield and Ottumwa, three miles east of Fairfield. No question is raised about the robbery’s having been committed. The evidence will not be stated in detail. The acquaintance of the witnesses with defendants, the manner in which the robbers were dressed, the presence of the different ones in Fairfield, and other details, are given. After the robbery, Barker, Faulds, and Hoskinson were compelled to descend into the ditch near the bridge, and Peacock was compelled to turn his car around, and drive the robbers back east towards Fairfield. When the robbers reached a Ford car, which the occupants of the Peacock car had noticed standing at the side of the road, as they went west, they alighted, and got into their car and went on east. Peacock and a boy. went back and met the other three victims, walking towards Fairfield. The victims had, in the meantime, telephoned to the sheriff. Faulds testifies that he recognized the two defendants as' the parties who held them up that night. He testifies that Connell was in the restaurant when he had supper, before the robbery, and that Connell saw what Avitness had in his pocketbook. He testifies that he had;met defendants and others in a crap game, two weeks before, and Bogardus in another crap game, the afternoon before the robbery. He heard Bogardus talk, and noticed that he talked through
The State’s witnesses are contradicted by witnesses
“I didn’t notice these two boys any more than any of the other boys. I walked down the railroad with them. Well, there wasn’t much talk about crooked dice. They simply mentioned they had a pair of shapes, and if there was any suckers around town, we could trim with them. We didn’t say anything. We were about as smart as they were, when it comes to shooting craps. I don’t know as we were any better. I don’t think they could learn us anything about shooting dice.”
Barker says that neither of the robbers looked like the defendants.
The mother and brother of Bogardus gave testimony, tending to establish an alibi for him, and say that he was at home, about 10 or 11 o’clock that night. A waitress at the cafe thinks Connell was in the restaurant all the time from 8 or 9 o’clock in the evening until after the holdup.
Without going into details, this is a brief summary of the evidence. A number of people were in the restaurant, and the waitress may have been engaged in her duties,
2. The indictment, as originally drawn, omitting caption /and signature of the county attorney, is as follows:
“The said Earl Bogardus and Fred Connell, on or about the 11th day of August of the year of our Lord 1918 in the county aforesaid, did, by force and violence and by putting in fear, steal and take from persons of Verdie Hoskinson and Clarence Faulds, property that is subject of larceny, to wit, one gold watch, one diamond ring, and $90 lawful money of the United States, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Iowa.”
The county attorney was permitted to amend the indictment in regard to the ownership of the property, as follows:
“Which said gold watch and $90 lawful money of the United States were then and there the property of and owned by the said Clarence Faulds, and which said diamond ring was then and there the property of and owned by the said Verdie Hoskinson.”
The thought of appellant is that the indictment, as originally returned, ('barges, and is a good indictment for,
We think the argument is built up on the assumption that the indictment originally charged only assault with intent to rob.' The original indictment does not specifically charge any assault, but simply charges that, by force and violence, and by putting in fear, the defendants did steal and take from the persons- of Hoskinson and Faulds property, etc. It charges robbery, and the original indictment itself, we think, comes very near alleging the ownership of the property, and does so, by implication at least. The amendment does not charge a different crime or different degree of crime from that charged in the original indictment, but' simply makes more specific the allegation concerning the ownership, which is expressly permitted in the statute before cited. We think this case, at this point, is ruled by State v. Kiefer, 172 Iowa 306.
3. After the jury had deliberated on their verdict about 30 hours, the court gave the following additional instruction:
The jury returned, an hour and a half after the giving of this instruction. The jury were not kept out so long after the giving of this instruction as to indicate coercion, and the fact that they deliberated an hour and a half after-wards shows that they were not coerced by the giving of it. Tn the Peirce case, infra, at 426, it was said that it seems to resolve into whether the relative time spent in deliberation may raise a presumption of prejudice against the instruction. Appellant cites the following cases, where a similar instruction was criticized: Clemens v. Chicago, R. I. & P. R. Co., 163 Iowa 499; State v. Mulhollen, 173 Iowa 242; State v. See, 177 Iowa 316; State v. Peirce, 178 Iowa 417. The State cites the following cases to sustain the instruction : State v. Lawrence, 38 Iowa 51, 57; State v. Hale, 91
We have seldom reversed for the giving of such an instruction. Some of the cases approve, without qualification, instructions similar to this; other cases criticize and disapprove, without reversing. The question has been fully discussed and the cases reviewed in the Peirce case, and we need not now repeat the discussion. In the instruction now under consideration, the trial court eliminated the language which was thought to be objectionable in some of the cases. For instance, in some of the cases, the instruction .contained this language:
“Such difference of opinion should induce the minority to doubt the correctness of their own judgment,” etc.
In the instant case, the court eliminated the objectionable language contained in the Clemens case, cited and relied upon by appellant. The Peirce case contained similar language. There were the further circumstances in the Peirce case, that three of the jurors stood for acquittal, when the instruction was given; it was late Saturday night, and it got into the jury room that the trial judge had gone home for Sunday. It was said that these circumstances fairly conveyed to the jury that failure to agree meant confinement over Sunday. The more recent cases are bottomed upon the case of State v. Richardson, 137 Iowa 591, 594, where a similar instruction was approved. See, also, Armstrong v. James & Co., supra.
We shall not discuss the different features and circumstances of all the cases cited on this point. Such an instruction is not always appropriate, and whether it shall be given is -largely within the. sound discretion of the district court; and the circumstances in this case are such as to bring it within the discussion of the case of State v. Peirce, supra.
We have a case, then, where no prejudice is shown, and that fact is conceded by appellants, and the record shows affirmatively that there was no prejudice. There x was no reversible error at this point. State v. Wart, 51 Iowa
No reversible error appearing, tlie judgment is— Affirmed.