101 Iowa 446 | Iowa | 1897
The indictment under which the defendant was convicted charged that he committed the crime of larceny from a building in the night time, in that he did. wilfully and feloniously take, steal, and carry away from a certain store building, in the night time, on a day specified, revolvers, pocket cutlery, and other articles owned by one Carpenter, of the aggregate value of one hundred and thirty-eight dollars. The jury found that the defendant was not guilty of larceny from a store building in the night time, but that he was guilty of larceny, and fixed the value of the property taken at nine dollars and ninety cents.
I. A portion of the charge given by the district court to the jury was as follows: “The indictment charges larceny from a store building in the nighttime. If you fail to find the defendant guilty of the crime charged in the indictment, you may find him guilty of the included crime of larceny, ifyou find, under these instructions, the evidence warrants you in doing so; and in considering whether he is guilty of such included crime, you will observe the instructions herein given you on the subject of reasonable doubt
II. Of the property of Carpenter taken from his store, two revolvers and two knives were found on the person of the defendant several days after the larceny was committed. We infer from the‘record that a part of the stolen property was found in the vicinity of the store a short time after the larceny. The defendant testified that he picked up the two revolvers and knives which were taken from him at the place where the stolen property was found, and his theory appears to be that, if he was guilty of any offense, it was of unlawfully appropriating the articles which he claims to have found, and that he could not have been convicted of that offense under the indictment in controversy. Section 3907 of the Code is as follows: “If any person come by finding, to the possession of any personal property of which he knows the owner, and unlawfully appropriate the same, or any part thereof, to his own use, he is guilty of larceny, and shall be punished accordingly.” Under this section the act which the defendant admits he committed was larceny. In State v. Hayes, 98 Iowa, 619 (67 N. W. Rep. 674), complaint was made of an instruction which defined the crime of larceny without reference to the section last quoted, but this court said that there was no force to the objection made; that section 3907 was not designed to create a distinct crime, but to declare a rule of evidence which, being fulfilled, constitutes the crime defined by section