State v. Billings

Commonwealth, permit 498, the inference See Schaum v. 215 Va. established (1975). If committed S.E.2d 75-76 defendant should be suffi- such evidence unexplained, hold, along I would with the authorities guilty verdict. support cient effect, majority cites to that that mentioned, authority possession there is already recently property stolen per- As concerning the effect of the mits an both rules inference defendant committed the with. burglary during are here concerned which the property inference we stolen; Mays, 204 N.W.2d that the inference need not v. follow doubt; question. this 1973) seemingly beyond we settled a reasonable and that such possession, cases unexplained, support a number of other decided if would Relying on court, possession finding there held defendant committed the break-in by when the theft recently property property stolen which the was taken. with a place in connection took the majority Since reaches that conclu- warrant a conviction of break- sufficient grounds, sion on other I concur in the re- entering.

ing and sult. Mays did not state majority says must be such as to whether the inference MOORE, J., REYNOLDSON, J., C. beyond a jury reasonable convince join special in this concurrence. enough if the pre or whether it is doubt UHLENHOPP, (concurring spe- Justice the inference as more sumed fact follows cially). process than not. This is the due likely Where the property evidence shows that States, problem raised in Barnes United was recently stolen in a enter- 2357, 37 L.Ed.2d 380 412 U.S. 93 S.Ct. ing and further shows the defendant to be decide, (1973). recognized, We but did not possession recently proper- of such stolen question Thornburgh, ty, I think the inference which arises that (Iowa 1974). N.W.2d guilty person defendant is the is suffi- the more-like- I believe we should follow permit cient to to find him guilty general instruction ly-than-not rule. The entering beyond a rea- that must find defendant sonable doubt. is definitive beyond a reasonable doubt duty. There is no sound reason State’s MOORE, J,C. and REYNOLDSON and why indepen- the inference must itself be HARRIS, JJ., join special in this concur- dently beyond established a reasonable rence. (and I recognize doubt. cases the ma- jority) speak possession “alone.” There thing possession

is no such as alone. area, discussing guest

In another stat claims, thing

ute we said there is no such

speed always accompanied by alone. It is

other circumstances. Winkler See v. Pat Iowa, Appellee, STATE of ten, 126, 129 (Iowa 1970); 175 N.W.2d Lew Baker, 1173, 1176, 104 is v. 251 Iowa Jerry BILLINGS, Appellant. Lee No. 58384. reasoning applicable

I think that same in a here. Possession doesn’t occur vacuum. Supreme Court of Iowa. always by circumstances of It is attended May 1976. time, of incidental con- place, and details duct. holding the real in at

I take this to be majority.

least one of the cases cited Johnson,

Dale A. Dodge, Fort appel- for lant. Turner, Gen.,

Richard C. Atty. James Mann, Robbins and Jr., Thomas Attys. Asst. Thatcher, Gen., County J. they testified drove William to Des Moines where Atty., appellee. they planned to equipment sell the to a

friend his. He called his friend from the Holiday downtown Inn in Des Moines. They stopped were near there by police who McCORMICK,Justice. though they seen had defendant drinking a appeals his conviction and sen- Defendant can police of beer. When the inquired aggravation without in tence for about equipment car, the stereo de- 708.3, The Code. He contends violation § it fendant said was his. With defendant’s (1) overruling in the trial court erred his help they recorded the serial numbers of evidence, (2) suppress motion to pretrial the equipment. Then the police said Brad- allowing express opinion a witness to an on well and go. defendant could Bradwell said law, (3) providing an issue of an he and defendant later sold the equipment (4) nighttime, incorrect definition to his split friend for the proceeds. $350 instruct on and enter- refusing to included offense. We re- ing as a lesser Osborn, Ned police officer, a Des Moines remand because we find merit in verse and testified he and another officer observed his third and fourth contentions. defendant and Bradwell in defendant’s car at about 10:00 p. day m. on the involved alleged charge The was based on the bur- pulling out of the Prendergast Holiday farm home downtown Inn glary Kipton parking lot. Osborn saw evening of Janu- defendant drink- County in Webster 29,1975. sufficient from a can the ary produced The officer believed con- to tained beer. He evidence to send the case said he directed Morris to stop follow and against defendant. ear because of ap- parent Code, violation of pro- The Prendergast testified he left home to scribing consumption beverages of alcoholic Dodge p. at about 6:00 m. He drive to Fort public on a highway. they When stopped the home. He said the locked the doors of car, defendant’s Osborn checked his driver’s sun had set and it was dusk but not dark. license. He also saw some of the stereo He remember whether he used his did not equipment in the back seat. got Defendant headlights driving automobile while to the out so, doing car. according to city. p. When he returned home about 9:00 Osborn, attempted he to hide the beer can open m. he found the front door and his under the spilled. seat and it Defendant equipment missing. stereo and TV He re- first denied but then admitted he had the ported County theft to the Webster beer. The officer confirmed Bradwell’s tes- provided that sheriffs office and office timony subsequent about events. He testi- equipment. of his with the serial numbers fied gave defendant permission him to Bradwell, alleged accomplice Michael an car, search the including the trunk. He defendant, testified he and defendant also testified he warned defendant about Prendergast drove home that eve- to the the beer violation but did not charge then ning breaking in purpose for the to steal him with that or any other offense. Prendergast’s equipment. stereo He said Through the testimony of other witness- Prendergast passed way them on his to es, the showed the police Des Moines Dodge. they Fort He said forced front contacted the Webster County sheriff’s of- open, equipment, put door took the it in morning fice the next inquired whether automobile. He estimated the defendant’s that office had report regarding received a p. time of the theft as 7:30 or 8:00 m. He stolen equipment. stereo they equipment said were able to see the sheriff’s of- fice sent the turning lights serial numbers on in the house. Al- of the Prender- on, gast though yard light equipment he he to the Des Moines police, said and it enough would have been able to see well was determined the numbers recognize person outside without it to matched those recorded officer Osborn. with acquainted. equipment whom he was Bradwell The recovered, was later charged question and Bradwell were defendant of mixed law and fact. The sub- ject matter was inappropriate in this con- text for opinion testimony. Grismore v. appeals subsequent now Defendant his Co., Consolidated 328, Products 232 Iowa conviction and sentence. (1942); N.W.2d see State v. suppress. motion to I. The Defendant Oppedal, (Iowa 232 N.W.2d 1975); suppress moved trial to evidence of before Johnson, 224 N.W.2d of his in Des Moines. search automobile 1974); Hegtvedt Prybil, 223 N.W.2d hearing, the After trial court overruled the (Iowa 1974). motion, assigns ruling defendant argues The State objection defendant’s error. question was not sufficient to alert the principles explained Under trial present court his theory that Cooley, (Iowa 1975), question called Bradwell express justified making the officers were in an opinion subject on a proper opinion not for stop of vehicle investigatory defendant’s be testimony because involving an issue of law. they specific had cause and articulable Because this case is reversed and remanded consuming cause to believe defendant was on defendant’s remaining two assignments public a highway beer on in violation of error, of we do not reach that We issue. 123.46, The Having lawfully Code. § assume situation the will not on recur re- vehicle, the stopped they place were in a trial. right a they they had to be when observed III.The trial night- court’s definition of the equipment plain stereo in view in the time. Over defense timely counsel’s ensuing back seat. The search was with adequate exception, the consent, trial court instruct- defendant’s and its were ad fruits ed the that jury “nighttime”, as an element Bustamonte, missible. Schneckloth v. burglary charge, a “is as the 218, defined U.S. S.Ct. 36 L.Ed.2d 854 period between sunset and De- Knutson, sunrise”. (1973); 234 N.W.2d assigns fendant the overruling court’s of 1975). his exception error. overruling The trial court did not err in suppress. motion to defendant’s Osborn, at 807, supra, evidentiary During ruling. II. The the held in a charge of un examination, direct alleged course of the Code, is, der The § as it was at accomplice Bradwell time of estimated the law, a period common between sunset and the as 7:30 or m. p. 8:00 The during sunrise which there daylight is not asked, then prosecutor night “And it was enough which to by discern a face. man’s 7:30 or on a winter De- night, 8:00 is—?” in support Authorities of this definition are objected fense counsel that the definition of listed in the majority dissenting opin night legal one witness was not ions in Osborn. shown to know it. The court overruled Recognizing that given by definition answered, objection, “Yes, and Bradwell it broader, the trial was urges court the State night”.

was us to abandon the common-law definition

Proof the offense “in the occurred one adopt given by the trial court. nighttime” is an element of We to do legisla- decline so. We believe the Code; Osborn, 708.1, The State v. ture intended the term § to have its common- (Iowa 1972). term meaning law, The has law 708.1. At § common legal meaning a definite as an element of of aggravation signified circumstance factor, explained in burglary, by Osborn and discussed the “nighttime” sunset not darkness, further Division III infra. In view but the concealment afforded legal specialized meaning of the term as gives the common-law definition effect State, definition of burglary, used in the Bradwell to that distinction. Bowser v. upon express was called on a opinion Md. A. 854 provisions These have jury part for the existed also been of fact of question A Code since 1851. proved the State regarding whether the offense under “nighttime” element When first confronted with an issue proper definition. its regarding relationship 708.1 and §§ 708.8, this court held provisions these erroneous definition court’s The trial first, degrees burglary, defined two “the error. was reversible the breaking entering night-time, with included offense issue. The lesser IV. the intent felony; second, to commit a adequate objection by timely and Despite and entering day-time.” sub- defense, court refused to the trial Frahm, State v. 73 Iowa 35 N.W. 451 house breaking and mit (1887). When later faced with a challenge lesser included offense 708.8 as a under § to a court permitting instruction a jury to assigns Defendant jury consideration. find a guilty defendant of the offense refusal as error. defined 708.8if the § found a failure proof “nighttime” on the element of lesser of- submission Authority for burglary charge, of a the court held: in two Code sections. fenses is found “It is said giving that the of this in- provides: first is erroneous, struction is because the de- for an offense indictment “Upon an fendant is charged crime, such degrees, the consisting of different and there is no evidence to sustain it. In may find the defendant Frahm, 73 Iowa 35 N.W. indictment, and in the degree charged 451, this court ‘burglary held that of a thereto, inferior or guilty any degree of dwelling house is of degrees, two —the offense, if to commit the attempt of an first, breaking the entering and in the by indictment.” punishable nighttime with intent to commit a felony; which provides: 785.6 The second is § second, the breaking the and entering in cases, may the defendant “In other all Code, 4465, daytime.’ the is as follows: § any offense the com- guilty be found of ‘Upon an indictment for an offense con- necessarily included in mission of which is sisting of degrees, jury different may charged he is that with which find the guilty defendant not of the de- indictment.” gree charged indictment, in the and guilty any degree thereto, of inferior provisions part have been of Code These attempt offense, of an to commit the if since 1851. punishable by indictment.’ The statute is here, Burglary, charged is the offense authority for the Breaking instruction. 708.1, Code, defined in The as follows: § entering and daytime is a degree any person any “If break and enter of the charged. offense As to there be- nighttime, in the with in- dwelling house ing no offense, evidence of such an we offense; or, any public tent to commit only say need there is testimony on which intent, having after entered such found that there was a breaking dwelling break such house in the time, and entering at some with the felo- nighttime, burglary, he shall be of necessary nious intent to constitute bur- )) ‡ n n glary. breaking This entering and must house, Breaking entering dwelling a and have been either in the or in alleged by the offense defendant to be a not, the daytime. If the evidence did burglary, pro- lesser of included offense degree certainty with that of necessary to Code, vided for in The as follows: § convict, show the offense to be of the any person, “If with intent to commit highest degree, it duty was the offense, any public daytime break rule, jury, under a familiar to find it of enter, and or in the enter with- hence, degree; the lower and if there was * * house; any dwelling breaking, out burglary, evidence convict of —which * * hereafter, imprisoned he shall be will be noticed certainly is—it a for verdict element of the sufficient sustain breaking of and Jordan, Iowa degree.” lower entering dwelling house, a that offense is 54 N.W. not necessarily included in a burglary charge. Nighttime daytime and are mutu- breaking of enter- Whether the offense and terms; ally exclusive nighttime does not defined in 708.8 is ing dwelling a house § daytime; daytime include is not included degree as in viewed as a lesser burglary. elements of Frahm Jordan or as a lesser included and offense, In would be the the result same. daytime Whether is an element of the event, for either in a trial when breaking offense of entering and a dwelling “night- the jury issue on the existed house presents under 708.8 a problem § element, time” lesser offense of break- statutory interpretation and construction. a dwelling house under Several familiar principles particular are 708.8 would also submitted for ly applicable here. We have repeatedly breaking we hold consideration. Because said that interpreting and construing dwelling a house under § statutes, we provisions consider related to we burglary, offense of lesser included gether attempt to harmonize them if have no occasion to reexamine the Frahm possible. searching intent, for legislative that en- holdings and Jordan object consider the sought to be accom is a tering house plished and the sought evil remedied. burglary. degree lesser We seek interpretation reasonable en- The State contends construction which will best effect the pur a lesser included tering offense cannot be pose provisions and avoid absurd offense of because its elements results. The manifest legisla intent burglary. Specifically it not included in ture will prevail over import the literal argues is an element of “daytime” the words used. Buckley, State v. entering offense breaking and not included 1975); N.W.2d Pry in the elements of bil, (Iowa 1973). involved in determin principle Jordan, In supra, State ap court necessarily when an offense is included proved an only instruction which not sub in the meaning another within of § mitted as a entering degree of Marshall, explained in burglary but informed the that if the 373, 375, (1928), fol Iowa 220 N.W. 106 as proved State all of the elements of burglary lows: except the element nighttime of the de cer- “Every charged crime consists of fendant would be of the offense of elements, if, the specific tain from daytime. and entering in the charged, elements crime certain require court not prove did the to taken, may thereby elements thereof be “daytime” as an element the lesser of of leaving necessary the elements of another Osborn, fense. Cf. State 200 N.W .2d crime, the latter would be an included 1972). (Iowa implication The clear of Or, way, offense. it in another if to state the holding “daytime” Jordan is that is not necessary to crimi- certain elements a an of element the offense under 708.8. § elements, charge, plus nal these cer- elements, necessary

tain make the other law, “nighttime” At common was an es crime, higher elements of a then the-low- Legislatures sential element of burglary. one.” higher er crime is included in the created a frequently statutory burglary of course, Of included is not a lesser fense, including nighttime the element. it justifies submitted evidence in unless the Nighttime aggrava was a of circumstance Smith, particular the case. State tion; it the made offense more serious than 1974), and citations. if it during did not occur nighttime. Bow State, (1920); the ser v. 136 Md. A. 854 Obviously, if use term “in “daytime” People, 708.8 makes Schwabacher v. 165 Ill. N.E. § court has same One called elevation of such criminalize the In order to prov not descriptive language could be into an element of an when conduct proscribing trap”, adding: enacted statutes offense a “semantic en, legislatures breaking and daytime relationship “The between common law houses. burglary daytime housebreaking pro- a perfect example vides of such semantic gap to fill a were intended statutes These difficulty. Daytime housebreaking stat- element law when in the gap utes were devised to fill the in the If their use proven. be burglary could law ‘nighttime’ as in where the element of bur- daytime”, “in language glary an element in was either establish non-existent could not held to were § crime, would be cast shown. In the remedial statutes how- the State lesser ever, having ‘daytime’ the affirma- did the use of the word position of strange of non- contemplate a circumstance an alternative element prove to burden tive must, to establish any in order other element of the aggravation would crime, construction affirmatively a literal shown? or did charge. Such legisla- part of ‘daytime’ ‘anything an essential mean simply defeat less also It enacting the statute. purpose nighttime?’ Georgia tive than demonstrated leaving a result of the absurd would have became mired in literalism and reversed a equal a state of land” where “no man’s daytime housebreaking conviction for be- greater between proof balance clearly cause the evidence did not show render conviction would and lesser elements day- that the offense occurred ‘in the reasonable doubt beyond a either crime State, time.’ In Jones v. 63 Ga. 141 addition, it it would make impossible. (1879), held, it was ‘To prove either prove to impossible for day night, was committed in the or in the strong proof of all crime, how no matter other, certainly prove one or the not to elements, time of proving the other that beyond a reasonable doubt burglary charge, day it occurred. On was committed.’ require nighttime would prove failure Court, however, “This in line with more breaking and acquittal. On enlightened thought, against set its face daytime would re- prove charge, failure absurdity [by adopting holdings such an be true even acquittal. This would * * * quire (citations omitted)] to the ef- prove require though the ‘burglary degree fect that in the second place other men- time of a break-in was not a different offense from common 708.8. tioned merely law but was a lesser Moreover, literalism which the same degree of the same offense’ and that element of the daytime an would make proof ‘when the fails to show the time of proof breaking of no would make offense burglar may pun- the offense then the be entering “without nighttime an element of the providing ished under statute the Yet, we provision. breaking” in the same penalty.’ lesser Absent such better con- ' charge is a lesser included have held that ceptualization, a bonanza would have Maxwell, 42 v. offense of clever ‘twilight been created for some (1875). We have done so because Iowa 208 burglar’ simply or for one who broke and breaking” is not an recognize “without undesignated entered at some time with- offense; merely it is de- element of that period, whereby in a 24-hour he could not scriptive. beyond shown a reasonable doubt to mutually either of two be, perpetrated have it should the conceptually, as Viewed exclusive, offenses, alternative notwith- 708.8 is “in the expression § standing unquestionably that he commit- distinguishes descriptively. It also used Henry ted one or the other of them.” v. dwelling a house breaking entering and 296, 302-303, State, 315 Md.App. A.2d the offense of burglary and from from 797, (1974). breaking. entering without nighttime ours, the the legislative scheme like Connecticut court relied on statutory a Under said, think “We history finding daytime court had earlier Maryland an element offense, day- ‘in the daytime breaking time of the and entering that the of a time’, an essential element dwelling is not under a statute enacted there in crime, in the statute to and is not used Separate proscribed 1902. 1902 statutes offense, characterize the but nighttime breaking entering day- define and and distinguish it from merely to breaking entering places. time and of other night- committed in the which must be “proof provided A 1902 statute” that a per- State, Reagan Md.App. v. time.” prosecuted nighttime breaking and son 244 A.2d entering daytime convicted of could be breaking entering and if the were un- have majority jurisdictions A place night certain whether the act took con- the issue have reached the same faced In 1949the Connecticut daytime. or in the clusion. merged nondwelling the legislature and Neddo, 71,Me. 42 A. 253 In offenses, breaking entering eliminating a (1898), interpreted the Maine court stat- prove legislature need to time. The the much like our 708.8. The court very ute § simultaneously repealed “proof stat- ag- was a circumstance of held proscribing daytime ute”. The 1902statute proven which needed to be when gravation breaking entering dwelling of a was be shown but that it was breaking could not Briggs left intact. The court held re- to establish the time of the necessary peal “proof leg- statute” showed breaking when could be shown. offense apply day- islature never intended it to Newell, A. 93 Vt. In State dwelling. of a breaking entering time (1919), making under Vermont statutes Therefore, concluded, legisla- the court nighttime” more serious burglary “in ture must have intended to be an “daytime” the court daytime”, than “in the element of that offense. We have no such not an element of the daytime held fact, legislative principle history. lesser crime: Jordan, adopted by this court in State v. is, “The effect of the sections referred to supra, is the same as existed Con- crimes, make two not to make two but to “proof Briggs necticut statute”. The hold- crime. The words ‘in grades of same ing application has no here. * * * used daytime’ offense, characterize the but define or “in language We conclude the distinguish higher it from the merely to daytime” in 708.8 does not make § * * grade of the same offense entering an elément of 1201, 1202. 13 §§ See Vermont Stat.Ann.T. dwelling provision. house under that language descriptively is used to contrast applied been principle The same has that offense with under degree § burglary is of the first Idaho where dwelling the offense of nighttime” and of the it occurs “in if house in the if it is committed “in degree second result, Eubanks, As a we hold break under 708.8. § 77 Idaho

daytime”. State house (1956); see 4 Idaho Code 18- under 294 P.2d 273 § necessarily in Tennessee 708.8 is a included applied It has also been 1402. “by night” is burglary which occurs

where .severely more than punished proof night of the Since State’s State, day”. Ledger v. “by which occurs presented element of ques time (1955); see 7 285 130 199 Tenn. S.W.2d case, tion for the in this the trial court 39-901, Ann. 39-903. Tenn. Code §§ refusing committed reversible error in to contrary reaches a A recent case which submit the lesser included offense here. v. clearly distinguishable. is State result (1971), A.2d 369 AND REMANDED. Briggs, 161 Conn. 287 REVERSED All Justices concur except MOORE, C. J., constitute the greater crime. n ^[*] LeGRAND, REES, (Emphasis added). and REYNOLD- JJ., SON, who dissent. Habhab, In State v. Iowa, supra, 73, 75, say: N.W.2d we MOORE, (dissenting). Justice Chief “ * * *. Under v. State Hawkins it first I concur in the three divisions of the quite possible is commit one crime in majority opinion disagree and the result but the act of committing yet another and holding from the in divi- with and dissent is not have it It not an included offense. sion IV. entirely included if its are elements not part included as a elements created a for defi- Our earlier cases need major offense.” (Emphasis added). holdings clarifying nite the rule to be fol- holding The in division IV does violence by determining lowed the bench and bar in to the above now well princi- established what should be submitted as an ples: making first by enter- holdings included offense. Our recent ing as defined in section a de- Code 708.8 clearly applicable establish rules. 708.1; gree of burglary as defined in section Smith, Iowa, In State v. 223 N.W.2d secondly by ignoring undisputed fact 225, we state: that section 708.1 not ele- does include the regard statutory “With to that enact ment “in the daytime”; thirdly re- (section 785.6) ment steps two are in moving the stated “in clearly element of determining volved in whether one of from section 708.8. necessarily fense is included within an All crimes in are The statutory. Iowa legal other. The focuses upon first or provisions of our statutes are con- therefore test, requires element and the second trolling. following pertinent The here: ad hoc factual determination. As to the punishment. “708.1 If Definition — former, a offense be lesser must com any person any dwelling break and enter posed of some but not all elements in nighttime, house intent greater yet require crime cannot an ele offense; any or, commit public hav- after greater ment not needed to constitute the intent, entered any with such break Grady, See State v. offense. 215 N.W.2d nighttime, dwelling such house he Brewer, (Iowa 1974); Everett v. shall be guilty burglary, be shall 244, 246 (Iowa v. State 1974); N.W.2d punished to the according aggravation of Hawkins, (Iowa 203 N.W.2d offense, provided sections 1973).” added). (Emphasis and 708.3.” Stewart, v. And Iowa, Aggravated “708.2 offense. If such filed Novem- simultaneously in offender, committing at the time of such Smith, with supra, ber burglary, is armed with a dangerous 251, 252, pages say: we weapon, having or himself so arm after house, actually “In a number of recent such cases have entered or offenses. any therein, dealt with included person being lawfully lesser assault Hawkins, has (Iowa 1973); present aiding 203 N.W.2d confederate Habhab, (Iowa abetting burglary, 209 N.W.2d 73 such he shall be Brewer, imprisoned Everett 1973); penitentiary for life or 215 N.W.2d 244 any term years.” 1974). steps There are two in de termining whether one includ “708.3 Burglary aggravation. ed within another. first is consid such If offender commit such eration of the elements. The lesser of otherwise than is mentioned in section 708.2, he composed imprisoned fense must shall solely peni- some tentiary exceeding twenty but greater years.” not all elements of the crime. The lesser crime must require any “708.4 Burglary by explo- means of which additional element is not needed to who, sives. Any person with to intent

7 n enters, office, time any and either break and enter crime, shop, breaks commit store, warehouse, car, building, boat, whether railroad by night, any or by day or vessel, not, opens attempts any building or or any or inhabited vault, safe, merchandise, goods, or other secure or any things valuable open use, sale, nitroglycerin, dynamite, kept deposit, or use of he shall place by any imprisoned or other in the gunpowder, penitentiary giant powder, material, guilty years, deemed more than ten or shall be be fined explosive (Emphasis explosives.” exceeding one hundred dollars and of im- prisoned jail in the added). county not more than year.” (Emphasis added). one of electrici- Burglary by means “708.5 who, to com- with intent ty. Any person degrees I. The of are clearly enters, crime, by either mit breaks and defined by legislative “aggra- enactment as in- building, whether night, any or day offense”, “burglary vated section 708.2 and not, attempts to opens or habited or aggravation”, section 708.3. State vault, safe, place secure or other open any Frahm, (1887) v. 73 Iowa 35 N.W. 451 motive or electricity as a by the use of Jordan, 87 Iowa N.W. 63 melting power agency, or or in burning or (1893) provisions read out these and decide form, any electrical means any by or daytime” in the “Breaking and is a whatsoever, acetylene use of by or degree charged. recog- of the offense Each gas, by any or gas, by oxyacetylene or daytime” nize “in the is an element of whatsoever, shall be gas any form dwelling. burglary with electrici- deemed of Both Frahm and Jordan are in conflict may (Empha- case be.” ty gas, or as the legal principles with the definite established added). sis Smith, Stewart, supra, “708.6 Punishment. Any person duly Habhab, supra. They supra, and State v. of under the terms of convicted overruled. specifically should be impris- sections 708.4 and 708.5 shall be majority, for the II. Somehow the first not more than penitentiary oned in the appeared first in the time since the statute forty years.” Code, finds and holds the clear and burglar’s tools— “708.7 Possession daytime” “in unambiguous words used any person having evidence. If be found part in the first of section do not any any time bur- possession in his breakings an element of establish “other with intent to glar’s implements, tools or enterings” only descriptive. but are burglary, the crime of he shall be commit nighttime” Are the words “in the and “at penitentiary not more imprisoned in parts in other any time” as used or fined not ex- years, than fifteen only descriptive? same section ceeding thousand dollars. The court one whom such conviction is had shall pointed supra by before As use emphasis, out by the sheriff of such order the retention legislature parts chap- several implements, to be used in evi- tools or specifically part ter 708 has made time a any person court in which such is dence in legislature each offense. If the defined defined, tried for the offense herein or daytime” intended “in the signif- have no possession of burglary, that of and the they icance would have used “either day implements pre- shall be such tools or night” or any or “at time” as was done intent commit sumptive evidence of his where so desired. Judicial removal of “in added). (Emphasis burglary.” as an element of the first unduly offense defined in en- breakings enterings. section “708.8 Other larges the offense and creates an offense any with intent to commit any person, If offense, covering break and the same crime defined in section public enter, Obviously contrary enter without 708.1. to the house; any dwelling legislative why or at clear intent. Otherwise breaking, statutory penalty breaking break- and entering a dwelling in the ing dwelling into a house daytime. greater daytime than that for

made break- LeGRAND, house? REES and REYNOLDSON, JJ., join this dissent. Iowa Bar Instruction Uniform No. 505.5 daytime” includes “in the as an element of being It,

the offense here considered. like instructions,

other uniform was prepared approved by a committee experi- capable

enced and members of the bar district court bench. While not control- Iowa, Appellee, STATE of ling, their product work should be carefully addition, considered. In use of the instruc- years

tion for several with “in daytime” Jerry BILLINGS, Appellant. Lee judicial as an element recognition indicates No. 58548. thereof. Supreme Court of Iowa. jurisdictions Case law from other varies particular as statutes of the states are not May 1976. the same chapter as those found in 708. my strongly sup-

However conclusion is

ported by holding Briggs,

161 Conn. 287 A.2d 369. There in

analyzing very statutes similar to ours the

court held the crime of and enter-

ing dwelling is not a lesser

included offense in the crime of burglary. Connecticut statute defines entering a dwelling of anoth-

er in the with the intent to com-

mit a felony therein. majority expresses

III. The concern that person may punished not be when problem evidence creates a of whether night- crime was committed “in the daytime.”

time” or “in the That of course grounds

furnishes for changing spe- no provision

cific of “in the legislature included in section 708.8.

However, I legislature believe the has fur-

nished the answer to such problem. provides:

Code section 773.38 separate

“Miscellaneous offenses. An

indictment may charge separate

counts:

1.A burglary and one or more other indictable offenses committed in connec- * * tion with said Thomas J. Bice Kramer, and James L. I would not reverse on ground Johnson, Burnquist, Erb, Gibb, Latham & trial refusing court erred in to submit Fort Dodge, for appellant.

Case Details

Case Name: State v. Billings

Court Name: Supreme Court of Iowa

Date Published: May 19, 1976

Citation: 242 N.W.2d 726

Docket Number: 58384

Court Abbreviation: Iowa