State v. Brannon

50 Iowa 372 | Iowa | 1879

Day, J.

. ment ■dupiiraty' Without determining whether the question as to duplicity in an indictment can be raised for the first time in a motion to set aside the verdict, and for a new trial, we feel constrained to hold that the indietment in question is not vulnerable to the objection presented. The Code, § 4300, inrovides: “The indictment must charge but one offense, but it may be charged in different forms to meet the testimony. ” The only difference between the first and second counts of the indictment is that the first charges that the money which the defendant aided in concealing belonged to Marion county, while the second count charges that it belonged to one E. M. Faris. The third count of the indictment differs from the first, in that the first count charges that the money which the defendant aided in concealing was stolen by John E. Barcas and Harry Williams, while the third count is silent as to the person by whom the money was stolen. The fourth count differs from the second in the same respect. It is alleged in the indictment that all the counts are based upon and grew out of the same transaction, and that the crime set forth in each and every count grew out of and is based upon the same transaction. It is very apparent that the indictment charges but one transaction, in forms varied to meet the testimony — the District Attorney evidently being in doubt, from the testimony, whether the money concealed belonged to Marion county or to E. M. Faris, and whether the evidence would authorize .the jury to find ■that it was stolen hy John R. Barcus and Harry Williams. Under section 4300 of the Code the offense may be charged in this manner. In State v. McPherson, 9 Iowa, 53, it is said: “Cases might arise where the indictment upon its face would show that different offenses were included, as if larceny and perjury should be charged. Where it is not thus apparent, other parts of the record should make it appear in some method that the counts relate to distinct offenses or transactions.”

In this case it appears upon the face of the indictment that the counts relate to the same transaction. The indictment does not, therefore, charge more than one offense. No other question is properly presented by the record for our consideration.

Affirmed.