State v. Sampson
138 N.W. 473
Iowa
1912
Check Treatment
Ladd, J.

— Tbe accused, with Charles Bergman and Hans Olson, occupied the same room at 205 Hoyt street,, in Mason City, and had done so for several weeks. In the evening of February 17, 1911, he retired at about 10 o’clock, and the others shortly afterwards, and, after they hаd fallen asleep, he arose, dressed, and seizing Olson’s watch from the dresser and Bergman’s purse containing $42 from his trunk, departed. He was subsequently arrested and two informations filed with a justice of the peace, the one, sworn to by Olson, charging him with petit, larceny of the watch and the ’other, sworn to by Bergman, alleging the larceny of the money from a dwelling. He *259pleaded guilty to both informations, and was immediately sentenced to serve a term of thirty days in the county jail on the former charge, and bound over to the grand jury on the latter, and was later indicted for the offense of larceny from a dwelling house. When put on trial, he pleaded his conviction of larceny of the watch by the justice as a bar to his prosecution under the indictment. On this issue, the court instructed that, “if in point of time and circumstances the taking of the watch and money was done on a single act or transaction, then there was but one crime, and your verdict must be for the defendant. But, if you find from the evidence that in point of time and circumstances the taking of the watch and money were done as separate acts and transactions, and not a single act or transaction, then the conviction of the crime of larceny of the watch would not bar a conviction of larceny of thé money described in the indictment.”

x. Criminal law: larceny: former jeopardy. ■Appellant insists that no such issue was raised by the evidence, and in this we concur. The taking was from the same room, and, though the watch was stolen from the dresser and money from the trunk, these , . . were parts' of the same transaction perpe- . p trated at the same time. That an instant or several minutes may have intervened between seizing the watch and the purse can make. no difference if these were a part of the same transaction wherein the accused carried out his design of stealing these articles. Nor does the circumstance that the property belonged to different persons render the transaction divisible into two offenses. The state may not split up and prosecute separately distinct parts of the same crime. Undoubtedly, many authorities may be found holding that where a man simultaneously takes two or more articles belonging to different persons, even though at the same time, he may be separately prosecuted for the taking from each owner.

In State v. Thurston, 2 McMul. (S. C.) 382, the *260prisoner stole cotton belonging to three different persons, and the conviction of larceny in stealing that of one was held not to be a bar to prosecution for theft from the others, saying ‍​‌​​​​​​​​​​​‌​‌​​‌‌‌​‌​‌‌​​‌‌​​​‌‌‌​​‌​​​‌‌​​‌‌‍“the stealing of the goods of different persons is always a distinct felony, or may at least be so treated by the solicitor, if in his discretion he thinks proper so to do.” See, also, Commonwealth v. Sullivan, 104 Mass. 553; United States v. Beerman, 5 Cranch, 420, Fed. Cas. No. 14,560. But these and like decisions in England have not been followed generally in this country. In State v. Emery, 68 Vt. 109 (34 Atl. 432, 54 Am. St. Rep. 878), the court states the rules sustained by the clear weight of authority as follows: “The theft of several articles at one and the same time and place, and by one and the same act, constitutes but onе indivisible crime, even though the articles belong to different owners; and the judgment of conviction or acquittal of the theft of one of the articles ife a bar to a prosecution for the theft of the others. A prosecution and conviction or acquittal for any part of a single crime bars any further prosecution based upon the whole or a part of the same crime. It is equally well settled that if, on the same expedition, there are several distinct larcenous takings, as tаking the goods of one person at one place, and afterward taking the goods of another person at another place, and so on, as many crimes are committed as they are several and distinct takings.” In Lurton v. State, 7 Mo. 55 (37 Am. Dec. 179), the larceny was of goods belonging to Curie and Gibson, and instructions embodying the above principles were refused, and this was held to be error. See, also, State v. Morphin, 37 Mo. 373. In State v. Hennessey, 23 Ohio St. 339 (13 Am. Rep. 253), conviction was reversed on the same ground; the court saying: “The particular ownership of the property which is the subject of a larceny ‍​‌​​​​​​​​​​​‌​‌​​‌‌‌​‌​‌‌​​‌‌​​​‌‌‌​​‌​​​‌‌​​‌‌‍does not fall within the definition, and is not of the essence of the crime. The gist of the offense consists in feloniously taking the *261property of another; and neither the legal nor the moral quality of the act is at all аffected by the fact that the property stolen, instead of being owned by one or by two or more jointly, is the several property of different persons. The particular ownership of the property is charged in the indictment, not to give chаracter to the act of taking, but merely by way of description of the particular offense.” In Hudson v. State, 9 Tex. App. 151 (35 Am. Rep. 132), the prisoner was accused of the theft of a gold watch of Mrs. Hurndall taken from her room, and pleaded in bar a conviction of the theft of mоney and goods of her son -taken from another room in the same house on the same night. On the trial the prisoner requested the court to instruct that, “when a variety of articles are stolen at the same time and from the same place and from the same or different persons, it is only one offense.” The court gave the instruction, with this qualification added: “The proof must show, before the jury can consider a transaction, to constitute only one offense, that the articles stolen werе in possession of the same party and taken from the same place and at the same time, and if any reasonable space-of time elapses between the taking of one and the taking of the other articles or they are taken from different places, it will be two distinct offenses.” The court disapproved of the modification, saying, in conclusion, that:

In order to avoid* misapprehension, it may he well to say that, when various articles are stolen at the same time аnd place, the transaction is not divisible, but is one transaction, and that a prosecution for the theft of a portion of the articles so taken would bar a prosecution for the theft of another portion of the same articles, whеther 'the property belonged to or was in the possession of the same person or different persons. But we must not be understood as holding that the different articles taken from different. persons and from different places, as from different rooms of a house occupied hy different persons, would necessarily be one transaction; but, on the contrary, that *262property thus situated would on proper averments and proof support different prosecutions. For example, if a thief should enter the room of one lodger at a hotel, and should there perpetrate a theft, and should then pass to the room of another lodger and there commit another theft, these would be different thefts, and each might be prosеcuted separately, and a conviction or an acquittal ‍​‌​​​​​​​​​​​‌​‌​​‌‌‌​‌​‌‌​​‌‌​​​‌‌‌​​‌​​​‌‌​​‌‌‍for the one would be no bar 'to the prosecution of the other. So in ease of one horse being taken from the inclosure of A., and another from the inclosure B., these wоuld be separate offenses. What the law prohibits is the cutting up of one transaction into different offenses, and holding one accused liable for more than one penalty when there has been but one violation.

See, also, Jackson v. State, 14 Ind. 327; Roberts v. State, 14 Ga. 8 (58 Am. Dec. 528); State v. Williams, 10 Hump. (Tenn.) 101; State v. Clark, 32 Ark. 231; 2 Bishop’s New Crim. Law, section 888. In State v. Egglesht, 41 Iowa, 575, the holding was that, where one at the same time and by the same act passed to a teller of a bank four forged checks, he was guilty of but one offense, and that a conviction for altering one of the checks was a bar to a conviction upon the others. After referring to many of the authorities now cited, the court remarked:

“It seems impossible to maintain the doctrine of the former cases upon principle. If the stealing of various articles owned by different individuals constitutes as many distinct offenses as there are owners, then they can not be united as one offense in the indictment. If one should at the same time, and as one act, steal two watches, each of the value of $15, and owned by different persons, and another pеrson should steal in the same manner two articles of like value owned by one person, it would be difficult to ■ give a reason satisfactory to the legal mind why one should expiate his offense with a fine of $200 or imprisonment in the county jail for sixty days, whilst the othеr should be sent to the penitentiary for the period of five years.” See, also, State v. Larson, 85 Iowa, 659.

*263There is no logical escape from this conclusion that the theft of articles belonging to different persons at the same place and time constitutes а single offense. The matter of ownership does not characterize the crime. Neither the legal nor normal phase of the offense is affected by the fact that portions of property taken may have belonged to different persons, and there is no ground, on the one hand, for allowing the state to split up the single act of the accused into subjects for several prosecutions, nor, on the other, for denying it the right to prosecute for the entire transaction as a single offense, aggravated by increased value of all the property stolen. As the watch and purse were stolen at the same place and time, but one offense was committed.

s‘ A ' It is argued that, as the accused is now charged with the сommission of an offense of which a justice of the peace has no jurisdiction, the ‍​‌​​​​​​​​​​​‌​‌​​‌‌‌​‌​‌‌​​‌‌​​​‌‌‌​​‌​​​‌‌​​‌‌‍former conviction can not operate as a bar. Simple larceny is an offense' included within the compound larceny from a dwelling house (State v. Nordman, 101 Iowa, 446), and if, after having been punished for the simple larceny, he is again punished for compound larceny, in which the simple larceny is included and of which it is a necessary ingredient, he is twice punished for simple larceny — once upon the conviction of simple larceny alone and a second time upon the conviction of the same simple larceny as a part of a compound larceny. There are no degrees in the crime of larceny; the circumstances of the offense being recited in the several statutes by way of aggravation in fixing punishment, and manifestly a conviction thereof in the absence of allegation or proof of these attending circumstances is a conviction of precisely the sаme offense as when these are included. So it has been held that conviction of petit larceny is a bar to subsequent prosecution for grand larceny on the same facts. State v. Murray, 55 Iowa, 530. In State v. Mike-*264sell, 70 Iowa, 176, an acquittal- of a charge of larceny from a dwelling in the nighttimе was adjudged a bar to a prosecution for robbery for that he had been acquitted of larceny, the essential element of both offenses. It is laid down in 1 Wharton, American Crim. Law, that: “If on a trial of the major offense there can be a conviction of the minor, then a former conviction or acquittal of the minor will bar the major.” And, as applying the principle to cases like that under consideration, see State v. Gleason, 56 Iowa, 203; State v. Wiles, 26 Minn. 381 (4 N. W. 615); Floyd v. State, 80 Ark. 94 (96 S. W. 125); Powell v. State, 89 Ala. 172 (8 South. 109); State v. Paul, 81 Iowa, 597; State v. Blodgett, 143 Iowa, 578. The same offense was charged in the information and the indictment. Though the latter • included aggravating circumstances omitted in the former, the criminal intent was the same, and we are of the - opinion that the conviction of petit larceny under the information in the absence of fraud or collusion was a comрlete bar to the subsequent .prosecution under the indictment for larceny from a dwelling house.

3. same: jurisdiction.. The Attorney General suggests that, inasmuch as the larceny was from a dwelling, the justice of the peace was without jurisdiction in convicting the accused оf simple larceny, even though he was charged tPg. latter offense in the information. The state in prosecuting ‍​‌​​​​​​​​​​​‌​‌​​‌‌‌​‌​‌‌​​‌‌​​​‌‌‌​​‌​​​‌‌​​‌‌‍may disregard or omit in the charge' lodged against the prisoner any or all aggravating circumstances, and, having done so, is not in a situation to challenge the validity of a conviction of an offense which as charged was clearly within the jurisdiction of the court.

The plea of former conviction should have been sustained. — Reversed.