State v. Hull , 83 Iowa 112 ( 1891 )

Given, J.

1. Practice in supreme court: record amended: abstract: motion to strike. I. The county attorney filed an amended abstract on behalf of the appellee covering ninety-four pages, which he certifies, in connection with the appellant’s abstract, fully presents the case. The appellant denies the correctness of the amended abstract, and moves to strike it from the files because useless, and not filed in time. We have, with considerable labor, compared the abstracts with each other, and with the transcript furnished by the appellant, and reach the conclusion that the appellant’s abstract fully and fairly presents the case, and that the appellee’s amendment was unnecessary. Another objection to the amended abstract, though not urged by the appellant, may be noticed by the court. It is that the so-called “amended abstract” is not in fact an abstract, but largely a transcript of the testimony by questions •and answers at length. We recognize the necessity and .advantage of, at times, setting out questions and answers as to some particular point that cannot be otherwise more concisely or plainly presented. While the county attorney claims that Ms abstract is within this necessity, we think he has gone beyond it, and necessitated the reading of many pages of questions and answers that could have been abstracted into a few pages with equal clearness. The appellant’s motion to strike the amended abstract is sustained, but in view of the denials we have referred to the transcript in the consideration of the case.

II. Following the order pursued in the arguments, we first notice the appellant’s contention that, although it was unnecessary to allege the location of the store building except that it was in the county, the state, having alleged its precise location as to lot and block, was bound to 'prove the location as alleged, and that no proof of such location was made. We think there is evidence from which the jury might find that the building was located as alleged, and do not, therefore, determine whether it was incumbent on the state to make such proofs.

2. Arson: indictment: duplicity. III. One ground of the appellant’s motion in arrest of judgment, and for a new trial, is that the indictment is bad ijor duplicity, in that it charges the crime of wilfully and maliciously burning a store, as defined in section 3884, and also the crime of setting fire to material with intent to cause the store to be burned, as defined in section 3885 of the Code. It is unquestioned that the indictment must charge but one offense. Code, sec. 4300. The contention is whether the indictment, considered as a whole, does charge both these offenses. Taking that part of the charge ending with the words, “I. R>. Hull & Co.,” immediately preceding the words, “ and did then and there,” alone, and we have a complete charge of setting fire to material with intent to burn the store building described, and taking what follows alone we have a charge of wilfully and maliciously burning the store building. The whole charge, considered together, does not, in onr opinion, charge two offenses. What is charged as to an actual burning must be regarded as an allegation of evidence, —a statement of a fact, evidencing the intent to burn previously charged, — and may be treated as surplusage. State v. Hayden, 45 Iowa, 11, is directly in point. In that case the charge was of breaking and entering a store building wherein valuable merchandise was kept for sale, with intent to steal said goods, and that he did steal certain articles named. The allegation that he did steal was held to be a statement of evidence, and surplusage. “ The instruction of the court, the verdict of the jury, and the judgment show that the crime for which the defendant was charged and tried was not larceny, but the breaking and entering the store with intent to commit larceny.” Such is the record in this case.' The instructions, verdict and judgment show that the appellant was tried, without objection on his part, for the crime of setting fire to material with intent to burn the store, and not for the crime of burning it. No objection was made to being so tried, nor to the indictment, until made in the motion in arrest of judgment and for a new trial. State v. Hayden has been approved and followed in State v. Shaffer, 59 Iowa, 290; State v. Ormiston, 66 Iowa, 143, and State v. Ridley, 48 Iowa, 370. In the latter case it was held, upon a similar indictment to that in the Case of Hayden, that the court erred in putting the defendant on trial for larceny. In State v. McFarland, 49 Iowa, 99, and State v. Kennedy, 63 Iowa, 197, the indictments were in two counts, charging different offenses, and were, therefore, held bad for duplicity; but in this there, is but one count, which, taken as a whole, charges but one offense, to-wit, setting fire to material with intent to burn the store building described.

8. -: evidence. IV. 'The state, for the purpose of showing the defendant’s financial condition at the time of the fire, offered certain drafts, drawn before and after the fire, which were admitted, over the appellant’s objection. The appellant’s testimony tended to show that most, if not all, of the indebtedness evidenced by these drafts existed at the time of the fire. We see no error, therefore, in admitting them in evidence.

4' -:- Y. A set of duplicate keys to the burned building was missing, and upon search was found in the vault of an outhouse. The state claimed that the defendant put them there, and the defendant claimed that they were put there by a detective, who was working against him, and who directed the search. To rebut the defendant’s claim, the state introduced, over the defendant’s objection, an affidavit of the county attorney, upon which a search-warrant was issued, and under which search was being made when the keys were found. In view of the claims of the defendant, there was no error in admitting this affidavit for the purpose of showing why the search was being made.

Y. The only remaining contention urged by the appellant is that the testimony is not sufficient to support the verdict. We have examined the testimony as set out in the transcript, with care, and, although it is conflicting upon many points, and open to much of the criticism made upon it, we are of the opinion that it amply supports the verdict.

Our conclusion, upon the whole record, is that the judgment of the district court should be aeeirmed.