
    State of Iowa, Appellee, v. Charles Sego, et al., Appellant.
    1 Criminal law: larceny op intoxicating liquor: evidence. Where the state makes out a prima facie ease the question of the criminal character of defendants conduct is for the jury. Under the evidence in the instant case the question of whether defendants intentionally stole liquor from the prosecuting witness was for the jury, and was sufficient to support conviction for larceny from the person, over the contention of defendants that their aets were done in jest.
    2 Same. Although liquor may have been purchased for an unlawful purpose, that fact will not justify stealing it from the person of the purchaser by force and violence.
    3 Same: nature and extent of punishment. An indeterminate sen-tenee for a term of fifteen years, for the theft of property from the person, valued at eleven dollars, was proper; as all mitigating circumstances may be considered and the sentence so regulated as to meet the ends for which the punishment is inflicted.
    
      
      Appeal from Jasper District Court. — Hon. K. E. Wilcock- . son, Judge.
    Thursday, April 10, 1913.
    Dependant, with, three others, was indicted for the crime of robbery. Upon trial to a jury, he was convicted of larceny from the person, and the value of the property taken was fixed at $11. An indeterminate sentence, not exceeding fifteen years, was rendered upon the verdict, and defendant appeals.
    
      Affirmed.
    
    
      E. J. Salmon ánd E. P. Malniberg, and Walter McHenry, for appellant.
    
      George Cosson, Attorney General, and John Fletcher, Assistant Attorney General, for the State.
   Deemer, J.

The sole and only ground relied upon for a reversal is that- the verdict has not sufficient support in the testimony; the claim being that defendant’s acts were not criminal, that he was not actuated by a crim- . . mal intent, and that what he did was in jest ’ ° rather than malicious. If a prima facie case was made out for the state, it was primarily a question for the jury to determine whether or not defend-, ant’s conduct was criminal in character, and with its finding we should not interfere.

The testimony for the state tended to show that one Wehrman, who was doubtless a “bootlegger,” went from the town of Ira, in Jasper county, where he resided, to the city of Des Moines, where he purchased twenty-two bottles of beer, eight quarts of whisky, and some candy. These he placed in two sacks and a grip-, which he was carrying, and left Des Moines for Ira upon a train which departed at about five p. m. on the evening of June 26, 1911. Arriving at Ira, he awaited at the depot for a man who was to tate him to his stopping place in the country. While sitting upon his grip, or suit ease, with a sack in each hand, defendant, with his companions, approached him, and defendant put his foot upon one of the sacks and said, “What you got here?” to which Wehrman.responded, “That is my property.” Defendant immediately jerked one of the sacks out of his hand and threw it in the depot window, where one of the codefendants received it and made away with it. While struggling to get this back, one of the other defendants took the other sack and went around the depot with it, joining the defendant who had taken the first one, and all went to a nearby livery barn. Wehrman'followed them to the barn and was there assaulted by defendant, who knocked him down and over into a watering trough, which was in the barn. Failing to recover his property, he started to leave the barn, and, as he was leaving, was struck by one of his assailants with a buggy whip. Defendant knew that Wehrman had gone to Des Moines, and a jury was justified in finding that he and his confederates surmised that he would bring some liquor back with him. At any rate, they were conveniently at the depot at or about the time the train arrived, and managed to get some of his liquors away from him by force or violence. Wehrman did not know any of his assailants, other than defendant, and did not appreciate the joke which was being played upon him, if it was a joke.

Wehrman, it seems, is not very bright and is under guardianship, and defendant and his companions succeeded in depriving him of liquors worth $11. We have assumed, for the purpose of the case, that Wehrman was a bootlegger, although the testimony shows, or tends to show, that he was buying the liquor for his own personal use. Even if the liquor were purchased for an unlawful purpose, this would not justify the defendant in taking it from the prosecuting witness by force or violence; and in asking us to hold, as a matter of law, that the entire transaction was a joke, notwithstanding an adverse finding by a jury, too much dependeñce is placed upon our credulity. Under the facts disclosed, defendant assumes a heavy burden, in trying to make it appear that the entire matter was in jest.

As an indeterminate sentence was imposed, the term of his imprisonment will doubtless be adjusted to meet his case. The chief merit of this system is that the punishment is made to fit the offender rather than the crime and all circumstances in mitigation or excuse may ° ° be considered and the sentence so regulated as to meet the ends for which punishment is inflicted. It is erroneous, then, to say that defendant has been sentenced for the term of fifteen years for a minor offense.

No error appears, and the judgment must be, and it is, Affirmed.

Evans, J.

(specially concurring). — I concur in the result and in the discussion, except as to one remark therein, viz.: “The punishment is made to fit the offender rather than the crime.” I am willing to say that such punishment is made to fit the offender as well as the crime, but I am unwilling to agree to the statement as made in the opinion at this point. In all other respects I concur.  