State v. Ryan

Given, O. J.

1 I. The county attorney, in his opening-statement to the jury, said, among other things, as follows :• “It is .often the case — whether it will' be here or not I do not know — that in cases of this character, where-the evidence is. more or less convincing, although circumstantial in its nature, that one of the defendants said the other di'd it so as to-allow the others to go free. I do not say that this will be done here, for I do not know- that it will be done.”' Of this statement appellants complain. Under section 5372 of the Code it wa-s-the-privilege-of the coun *538 ty attorney to briefly state tbe evidence by wbicb he expected to sustain the indictment. It is remarkable that attorneys appearing for the state so often exceed this privilege at the hazard of having a conviction set aside because thereof. The part of the statement complained of was not a statement of evidence, but a prediction as to what the defense might be. The defense did do what was predicted, and therefore the statement was not prejudicial to the appellants.

2 II. The state was permitted, over defendants’ objection, to examine one A. E. Loomis, whose name was not upon the indictment. The ground of the objection was that no sufficient notice had been given. On Sunday, April 22, 1900, the state gave the defendants notice in writing that Mr. Loomis would be examined, and stating what Avas expected to be proven by him. On April 25th another notice in Avriting was given the appellants of additional matters that it was expected to prove by Mr. Loomis. Code, section 5373, requires such notices to be given at least four days before the commencement of the .trial. Appellant’s contention is that the first notice, being given on Sunday, is void, and as if no notice had been given, and that the second Avas not given four days before the trial commenced, namely, April 27, 1900. In 20 Enc. PI. & Prac. p. 1197, it is said: “While at common law, as has been seen, no judicial act could be done on Sunday, the authorities are practically unanimous that mere ministerial acts could be performed on that day; and this would seem to be the rule at the present time, in the absence of any prohibitory statute.” Section 285 of the Code provides that certain judicial business may be transacted on Sunday, and sections 3522-3879 and 3956 provide that certain judicial processes may be issued and served on Sunday. Section 5040 forbids certain acts being done on Sunday; but none of these sections has reference to giving notices like this one, and therefore does not forbid giving them on Sunday. Giving such notice is a ministerial act, and not forbidden to be given on Sunday by *539 tlie common law. In Davis v. Fish, 1 G. Greene, 410, tlie question was as to a judicial act done on Sunday, and did not involve the legality of other acts done on Sunday, and what is said as to acts pertaining to the administration of justice is dicta. There is no rule, either of statute or common law, making this notice illegal because given on Sunday.

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*539 III. Appellant complains of the eleventh and twelfth paragraphs of the instructions. The eleventh is as follows: “If you find from the evidence, beyond a reasonable doubt, that on or about the eighteenth of March, 1900, a building belonging to or in the possession or occupancy of B. E. Woodruff, and situated in Benton county, Iowa, was broken into and entered, and that personal property was stolen therefrom, and you further find that within a few hours thereafter the property so stolen was in the possession of the defendants, you will, in .such case be warranted in concluding and finding that such property was stolen by the defendants from said building by breaking and entering.the same, unless the facts and circumstances disclosed, or the evidence introduced by the state or the defendants, raises in your mind a reasonable doubt as to whether the defendants did come honestly into the possession of such property. If such reasonable doubt has been raised in your minds by the testimony and facts and .circumstances introdused and appearing in the case, then you should not act upon said presumption in convicting the defendants, and should not convict the defendants, unless their guilt has' otherwise been proven, as you are directed it must be.” This instruction is supported by the following cases: Slate v. Taylor, 25 Iowa, 275 ; State v. Hessians, 50 Iowa, 137 ; State v. Richart, 57 Iowa, 246 ; State v. Kelly, 57 Iowa, 645 ; Johnson, v. Miller, 63 Iowa, 538 ; State v. Golden, 49 Iowa, 49; State v. Rivers, 68 Iowa, 616 ; State v. LaGrange, 94 Iowa, 61 . Other cases might be cited to the same effect. *540 Williams v. State, 60 Neb. 526 ( 83 N. W. Rep. 681 ), is not in point, as a different rule prevails in that state. The defendant Griffith having testified in his own behalf, the court instructed that such weight and influence should be given to his testimony as it was entitled to, and that “in weighing his testimony you have the right to and should take into consideration the fact that the defendant is on trial charged with an offense, and is an interested witness; but, while this should not cause you to disregard his testimony, yet you should consider that fact while weighing his testimony.” This instruction is fully sustained in State v. Moelchen, 53 Iowa, 316 ; State v. Sterrett, 11 Iowa,. 388.

5 IV. The indictment shows that the grand jury, “upon their oath do aver, find, present, and accuse John Ryan and Joseph Griffith of the crime of burglary, for at and within said county, on the eighteenth day of March, A. D. 1900,. in the nighttime of the same day, unlawfully, feloniously, and burglariously did break and enter the dwelling house of B. E. Woodruff,” etc. Appellants contend that this does not charge them wfith the crime, for that they are not named or referred to as the persons who “unlawfully, feloniously, and burglariously did break and enter.” Surely, it cannot but be understood that it was the persons previously named who are charged with the crime. Section 5289 of the Code provides as follows: “The indictment is sufficient if it can be understood therefrom: * * *" ' (5) That the act or omission charged as the offense is stated in ordinary and concise language, with such cei’tainty as to enable a person of common understanding to know what is intended, and the court to pronounce judgment according to law upon a conviction.” Surely, a person of common understanding would know from this indictment that it is these defendants who are charged with the offense. Appellants* counsel quote from 10 Ene. PI. & Prac. 504, as follows: “An indictment or .information must name the defendant whom it is intended to charge with the offense therein al *541 leged, and an omission in this regard will make the indictment bad.” "VYe think the defendants intended to be charged .are named in this indictment. True, the indictment would have been more'accurate had there been appropriate words •of reference to them, but, in view of our statute just quoted, this omission is not fatal to the indictment, and for the same reason the cases cited from other states are not in point.

V. In conclusion the appellants insist that the punishment adjudged against them is entirely disproportionate to the crime. True, it does not appear that they were armed with dangerous weapons, or that they intimidated any per■son, but the evidence leaves no doubt that they were prowling vagabonds and professional thieves and burglars. The punishment is severe, but not more so than seems necessary to protect society from such lawless characters. Our conclusion is that the judgment of the district court should be AEEIRMED.