State v. Watrous

| Iowa | Jun 25, 1862

Wright, J.

1. That tbe venue is alleged with sufficient certainty in this indictment, we entertain no doubt. Tbe place, as well as tbe time, is once stated, and need not, therefore, be afterwards alleged. (§ 4660.) From tbe language used, tbe mind can readily understand that tbe offense was committed within .the jurisdiction of tbe District Court of Polk county. The failure, in the description of the laud, to locate it west of the fifth meridian, is of no importance, for aside from this the county is clearly stated, and we know that if in Polk county, it must be west of that line.

II. The statute provides that: “If any person willfully commit any trespass by cutting down or destroying any timber or wood standing or growing on the land of another, or by carrying away timber or wood being on such land, he shall be punished,” &c. The language of this indictment is concise, and is sufficient to enable any person who will give it a fair and ordinary construction, to know that the timber destroyed was upon the land owned by William C. Allen. To say that it means anything else, or that it does not convey this thought to the mind, we should have to warp its meaning, and disregard the plain reading of the statute, for it is declared that if an offense is charged with such certainty and in such a manner as to enable a person of common understanding to know what was intended, and the court to pronounce judgment according to the law of the case, the indictment is sufficient. (§ 4659.) State v. Hintermeister, 1 Iowa, 101" court="Iowa" date_filed="1855-06-15" href="https://app.midpage.ai/document/hintermeister-v-state-7090936?utm_source=webapp" opinion_id="7090936">1 Iowa, 101.

III. It was not necessary to more particularly state the specific inj ury to the property. The language of the statute is followed, and this is sufficient. Indeed, it is difficult to perceive how the pleader could have been more specific. When it is alleged that the timber was cut down and destroyed, the sum of all other injuries thereto is included. The statute of Indiana, under which The State v. Pendon, 2 Blackf., 371" court="Ind." date_filed="1830-12-09" href="https://app.midpage.ai/document/yandes-v-lefavour-7029707?utm_source=webapp" opinion_id="7029707">2 Blackf., 371, was decided, fixed the punishment at a sum not exceeding twofold the value of the property destroyed, and ■hence the necessity of averring the value in the indictment. But the specific means made use of to effect the injury, need not be stated. State v. Merrill, 3 Blackf., 354. And see State v. Seamans, 1 G. Greene, 418; Same v. Chambers, 2 Id., 308; Same v. Douglass, 7 Iowa, 443.

IY. An indictment may charge an offense in different forms, to meet the testimony, and if it may have been com ■ mitted in different modes or by different means, these may be alleged in the alternative. (§ 4654.) In charging an offense in different forms, the pleader is not compelled to use the alternative form of expression. This indictment does not violate the requirements of the section referred to, but, on the contrary, is clearly sustainable by its letter and spirit, and the following cases: State v. Abrahams, 1 Iowa, 117" court="Iowa" date_filed="1855-06-15" href="https://app.midpage.ai/document/mccrary-v-crandall-7090940?utm_source=webapp" opinion_id="7090940">1 Iowa, 117; Same v. Vaughn, 5 Id., 369; Same v. Walters, Id., 507; Same v. Cokely, 4 Id., 477; Same v. Twogood, 7 Id., 252; Same v. Barrett, 8 Id., 536; Same v. McPherson, 9 Id., 53.

Y. It was no valid objection to the evidence of title in Allen, that the “certified transcript of original entries” and deeds, described the land as being west of the 5th principal meridian. True, the indictment did not name the meridian, but such evidence does not conflict with the description given. And in this connection we remark, that evidence as to the value of the timber destroyed was admissible, if for no other purpose, to enable the court to fix the punishment. (§ 4875.)

YI. A witness was offered, who was not examined before the grand jury. Notice of the intention to introduce this testimony was given under § 4786 of the Revision. The witness was objected to, but upon what ground is not stated. It is now urged, however, that the notice was not served by the District Attorney. It seems that the notice was signed by “ P. Grad Bryan, District Attorney for the 5th Judicial District, by S. Y. White.” Defendant accepted due and legal service of the same, and agreed to treat it as if personally served, on the day named. Under such circumstances, the objection was untenable.

YII. It is claimed that the court erred in giving certain instructions. We find what purports to be instructions in the transcript, but whether they were given or refused, does not appear. Upon this subject, see State v. Gébhardt, ante. In this instance, the instructions are not marked, either “given or refused,” signed by the judge, nor filed with the clerk. They cannot be considered, therefore.

YIII. It is finally claimed that the judgment was pronounced within less than three clear days after the verdict was recorded. This question was made in the case of The State v. Marvin, 12 Iowa, 502. There, however, the record failed to show that the term continued three clear days after the rendition of the verdict, and we could not, therefore say, that there was error, in view of the provisions of the statute. (§ 4861.) In this case, the record tends to show that the court remained in session for about three weeks after the reception of the verdict. This is not controverted by the Attorney General, and is therefore regarded by us, for the purposes of this case, as true.

It seems that the defendant was arraigned for judgment more than six hours “ after the bringing in of the verdict.” But the statute is imperative, that, if the court remains in session so long, “ the time appointed for judgment, must be at least three clear days after the verdict is recorded,” but in no case can it be pronounced in less than six hours thereafter. (§ 4861.) Unless the record quite clearly rebuts all presumption of prejudice, we do not see how we are to disregard these plain requirements. The language of the statute is imperative. The reason for it, we can readily apprehend. With its wisdom, we have nothing to do. The presumption of prejudice is not sufficiently rebutted in this instance, and, we therefore, feel constrained to remand the cause, not for new trial, but for judgment upon the verdict, defendant having leave to show cause against the same, but not such as have already been passed upon by the court below.