Citation Numbers: 191 Iowa 19
Judges: Aethur, Evans, Ladd, Preston, Salinger, Stevens, Weaver
Filed Date: 12/16/1920
Status: Precedential
Modified Date: 7/24/2022
Upon a search of defendant’s residence, made by officers oh the night of March 21, 1918, certain burglar’s tools were discovered therein, consisting of 12 keys. He was arrested the same evening, and duly indicted.
Defendant complains that proper notice of this proposed amendment was not given, and that the nature of the amendment was such as was not authorized by the statute. The record discloses no lack of proper notice. The nature of the amendment was just such as comes within the contemplation of the statute which expressly provides for amendment “in the description of any person or thing * * * described in the indictment.” Section 5289, Code Supplement, 1913; State v. Kiefer, 183 Iowa 319.
III. Langland testified as a witness upon tbe trial. He was not a witness before tbe grand jury. Objections to him as a witness were made upon that ground, and because no proper notice of bis testimony bad been served. Tbe grounds thus urged are not sustained by tbe record. Proper notice of the proposed evidence' of this witness was served.
IY. Some complaint is directed to tbe instructions given by tbe trial court. But it does not appear from tbe record that any exceptions were taken to any instruction within tbe time provided by statute.
VI. Tbe more important question in tbe case pertains to the sufficiency of tbe evidence to support tbe conviction. Tbe general grounds of objection to tbe sufficiency of tbe evidence are: (1) That tbe State did not prove that tbe burglar tools were in tbe possession of tbe defendant; (2) that it did not prove that such possession was guilty or felonious.
It is undoubtedly true, also, that the State must show, as the second element of the crime, that the possession was guilty and felonious: that is to say, that it was with intent to commit the crime of burglary.
Upon the trial, the State introduced evidence tending to show defendant’s possession of the burglarious tools in question. It thereupon rested, without introducing independent evidence of the burglarious intent of the defendant. The reason for this course will hereinafter appear. We proceed, then, to consider the first question: Did the State introduce sufficient evidence to show possession in a legal sense, disregarding for the moment the question of the guilty or felonious character of the possession 1
As already stated, the search and discovery by officers was made on March 21, 1918. These tools were found in a little house which was the home of the defendant at the time of their discovery. This house had been rented from the owner’s agent by this defendant personally, and the rent therefor had been paid by him. He and his codefendant, Benton, had occupied the same for at least two months prior to the time of the search. This house is known in the record as No. 1016 Third Street, and was located near the Northwestern depot at Ames. No occupation is disclosed for either of such defendants. They were both living in this house up to and including the date of the search, though this defendatit was not present in the house when the search warrant was served, about 10 o’clock at night. At that time, Benton was in the house alone. The house thus occupied was a small frame building, about 16 feet wide and 18 or 20 feet long. It had three rooms on the first floor and two rooms
As to the defendant’s use of this basement, the witness G-retten, ex-sheriff, testified to a conversation with the defendant on the night of his arrest, as follows:
“A. I asked him about a hole he had dug in the basement, and he said he had dug a hole to keep his meat in. Q. What else was said? A. There were two rooms in the basement, and he had a big jar of lard which I found in one room, and in the other was this hole dug in the basement. The cement part had been taken up, or a hole dug under there, and then this piece of cement laid back in there. He said he dug that hole to keep his meat in. He called it his ice box. Q. Did he say anything about the other room to the east? A. He said he had been keeping it in there. He had some meat hanging up there, but he said he had to have a cooler place for it.”
Inasmuch, therefore, as this property was found in the defendant’s dwelling, actually occupied by him, and found in a part of such dwelling actually used by him, wé think this was sufficient prima-facie proof of possession, in a legal sense. It was, in fact and in law, within his dominion and control, and was, presumptively at least, in his possession. This is not saying that his possession was guilty or felonious. That feature
We hold, therefore, that, upon the mere question of naked possession, whether innocent or guilty in character, the finding of this personal property in the dwelling occupied by the defendant, and in a part thereof actually used by him, is presumptive evidence of his possession.
“Defendant moves the court that there be excluded from the room the grips, the 15 guns, the pillows, number of tools, of clothing, the bed clothing, the canned goods, because the State is seeking in an irregular way of convicting the defendant by prejudice; because one Happen is upon trial on this indictment, and the defendant,- in open court and in the presence of the court and jury, asks to have the record show that whatever act this defendant himself committed, that the act charged in the indictment, if it was done at all, it was done designedly, and it was not accidental or unintentional or through inadvertence or mistake; and for that reason and for the reasons above stated, no kindred acts or crimes can be admitted in this case from-the one charged in this indictment', with its three amendments.
“The State of Iowa resists the motion of the defendant to excllide from the court room the articles which the State proposes to introduce in evidence later, for the reason that, even though the defendant does admit that whatever act he performed or did was designedly and not by accident, yet, nevertheless, such admission does not go to the extent of saying that whatever act or acts were done by the defendant were done bur-glariously, it being the purpose of the State to show by the articles in the court room that the defendant has—
“The court: I think, Mr. Langland, if you wish to make a statement with regard to those matters, the jury should be excluded from the room. I will exclude the jury at this time.
“The State further resists the motion of defendant to exclude the articles from the court room: (1) That defendant’s admission does not go to the extent of admitting that whatever crimes he did were done burglariously; and (2) that it is the purpose of the State to show, by the articles here in the court room, that the defendant has been guilty of a great many differ
The court sustained the defendant’s motion. It is now said, in disparagement of the State’s case, that there is no evidence that the defendant knew that the keys were where they were found; that there is no evidence that any stolen property was found, and no evidence that any of the property found was stolen. It devolves upon us, therefore, to construe this admission by the defendant, and to declare its effect as evidence in the ease.
The alleged burglarious intent of the defendant might have been established by circumstances, and a wide range was open to the State for that purpose. It was open to the State to prove that the defendant had been guilty of recent burglaries. In proof of such burglaries, it had a right to show that the articles •produced in court had been found in his possession, and that they were the fruits of recent burglaries.' The State offered “to show by the articles here in the court room that the defendant has been guilty of a great many different crimes of burgla'ry.” If, by the aid of such evidence, it were proved that the defendant had been guilty of recent burglaries, there could be no question of the sufficiency of the evidence to justify a conviction. But the trial court accepted the tendered admission of the defendant as covering that ground, and excluded the.evidence in advance, by sustaining the defendant’s motion. The argument upon the sufficiency of the evidence is based upon the insufficiency of such admission to cover the ground of the guilty intention. The record discloses that the defendant’s admission was patterned upon our holding in State v. Strum, 184 Iowa 1165. Counsel for defendant made the admission of record, and presented his motion to exclude the articles, with our opinion in the Strum ease before him. The ruling of the trial court was in strict obedience to our holding in that case. There is no material distinction to be found, as between the record in the case at bar and the record in the Strum case. The Strum ease was
“Comes now tbe defendant in open court, in tbe presence of tbe court and jury, and states that whatever act be did with which be is charged, be did it designedly; that it was not accidental or unintentional or through .inadvertence; and that whatever be did, be did knowingly.”
Because of such admission, tbe defendant Strum objected to all evidence of other transactions offered for tbe purpose of showing knowledge and intent. Such evidence was, however, received by the lower court over such objections. On appeal by the defendant, we held here that such admission was effective to preclude any further evidence on tbe question of knowledge and intent. We held expressly that the ruling of tbe court amounted to a “forcing of testimony into tbe record which has no right to be there, except to show that the defendant did act intentionally, after he has solemnly admitted of record that this is so.” Because of the admission of such evidence after the foregoing admission had been made, we reversed the case.
Precisely the same kind of an admission was entered of record in the ease at bar, and it was entered for the same purpose as was that in the Strum ease. Acting in obedience to our holding in the Strum case, the trial judge sustained the defendant’s motion, and excluded the proposed evidence, and treated the proffered admission of the defendant as fully covering the purpose for which such proposed evidence was offered. No other course was possible to the trial judge, unless he had chosen to ignore our holding in such prior case. It is now urged that there is no proof that the proffered articles were stolen. How could there be such proof, when the State was precluded by the ruling of the court from offering any evidence at all of other transactions for the purpose of proving intent ? It is also urged that it was not proved that the articles were found in this dwelling. It was not essential that they should have been found in the
Inasmuch, therefore, as the admission of the defendant was conclusive upon the State, and precluded the State from introducing any evidence pertaining to the articles which it produced in court, and as such was the very purpose of the admission, it follows that such admission was necessarily conclusive upon the defendant also, and precludes him from saying that his admission was less effective than the evidence would have been.
It is our conclusion that the ■ course adopted by the trial court was. precisely that which was selected by the defendant through his counsel, and he has no just ground of complaint. The judgment below is, therefore, — Affirmed.