21 Iowa 433 | Iowa | 1866
At the common law it is well settled that an indictment for larceny charging the property to belong to A, would not be sustained by proof that it belonged to A and B, as partners. The rule is different in the case of a bailee; for inasmuch as there is a property in the article stolen in both, special in the bailee and general in the bailor, the property may be described as belonging to either. The possession of one partner is, however, the possession of both. He is not a bailee, and all the partners, therefore, if known, must be named, and a variance would be fatal. Upon this subject see Hogg v. The State (3 Black., 326), and the authorities there cited; as also a reference to the statute of 7 Geo. IV, chapter 64, modifying the rule of the common law.
This being the common law rule, we next inquire what change, if any, has been made by the provisions of our criminal statute. This declares that “ When an offense involves 'the commission, 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
"Was this an offense involving an injury to property within the meaning of this section ? Of this we-entertain but little doubt. As the taking of life would involve an injury to the person,', even more completely than an assault with intent to kill or maim, so does a felonious taking, entirely depriving a party of his property, involve an injury to it, to as full an extent as to burn or destroy it, in whole or in part.
Then, was this an erroneous allegation as to the name of the parson i/njwred, within the meaning of the law % The question is a close one; but .upon the facts of the case, in view of all the allegations of the indictment and the spirit and meaning of the law, we are inclined to hold that the variance was not material.
The common law rule referred to is technical purely, and is supported by authority rather than reason. Our statute, throughout all its provisions, makes it the duty of courts to disregard all defects which do not prejudice the substantial rights of a defendant upon the merits. The section quoted is in entire harmony with this duty, and was intended to assist in its discharge. By this it is required that the offense shall be described with sufficient certainty to identify the aot. This was done. The time, place, amount and description of property stolen, and the name of the person from whom it was taken — all these facts were stated with such particularity as to leave no uncertainty as to the act. Then the offense charged is for stealing from the person (§ 4240) and not for the felonious taking of the property of another generally. The name of the person from whom it was taken was correctly described. The error was in alleging that it belonged to this person, when it belonged to him and another, as
Our opinion is, that the instruction should have been refused. And having thus given an exposition of the law, as required by the statute, any further action or order becomes unnecessary.