178 Iowa 297 | Iowa | 1916
It is alleged in the indictment that, on or about the 3d day of July, 1915, the defendant burglariously broke and entered a certain dwelling house in the possession and under the control of one John Baker; that he did this with the unlawful and felonious intent to commit the crime of larceny. To the indictment, the «defendant entered a plea of not guilty, was tried to a jury, convicted and sentenced to the penitentiary at Ft. Madison. From this judgment of conviction he appeals.
The evidence in this case is circumstantial. There is no direct evidence that the defendant committed the crime charged against him. The evidence discloses that John Baker, referred to in the indictment, is a farmer, and occupied the house alleged to have been burglarized; that, about 10 o ’clock on'the morning of the -3d day of July, 1915, he, with his family, left the home and went to the town of Dayton to attend a celebration. The house was left securely locked. All the doors were securely fastened, except one, and this was secured by a chair placed on the inside. All the windows were securely locked, except one, which opened' in the pantry. This was covered by a screen. A. wire screening was tacked over it. Between 4 and 5 o’clock, certain men working in a field near by discovered this house to be on fire. They
Beck, one of the parties who discovered the fire and came to the building, testified:
"I tried the east door on the porch and could not break the lock. Then we went around the house and broke the lock of the west door that went into the kitchen. There were no doors open when I got there.”
He says there was a bull dog on the porch. The evidence shows that this dog fought these parties off at first, and had to tje silenced with a brick or something before the building could be entered. The door- locked with a chair was intact, and the chair was removed and the door opened by the persons who broke into the building. There is no evidence that the screen was removed from the pantry window.
Walker, one of the parties that first arrived, testified that there were three outside doors; that they tried all of them before they broke in; that everything was shut up tight. He testified:
"The dog was there. The dog tried to do a whole lot, but we didn’t let him. The men knocked him down with a tile. Not long after we got there, there were others around the house, and someone broke the south window in. It was a bay window. The people were all around the house. They came in through all the doors. There were three or four helping-in the front room that I knew of. The others were all over the house. I don’t know where. I didn’t pay particular attention to what they were doing. Everybody was busy getting the things out of the house. There was plenty to take care of them when we got to the porch. The people kept coming after the house was burned to the ground.”
Beck further testified:
"After we arrived from the field, others began to arrive. They all ran into the house and helped to carry things out. There was quite a bit of excitement. I didn’t care where I put thing's, so I got them out. Everybody was in a hurry.*300 We [put the bedding in bunches away from the fire. Four or five of us did most of the work carrying out. I didn’t know all the people that were there; I knew most of them. 'I didn’t know what they did in the house. When we got through, the goods were scattered all around in different places. We then picked up the furniture and bedding and things and put them in a hayrack. We put the wearing apparel in there too. We just threw them in loose. We didn’t stop to take notice of what was there or what was not. We just proceeded to get things out — whatever was in sight.”
John Baker testified:
“We didn’t return to the house until about 7 o’clock in the evening. When we returned, there was quite a lot of neighbors there. Our household goods were in a double corn-crib in a hayrack. The house was burned to the ground. ’ ’
Of all the parties who attended the burning of the building and assisted in rescuing the property from the building, Beck and Walker were the only two called. Defendant introduced no evidence. '
Two witnesses testified that, a little after 1 o ’clock of the day on which the house was burned, they saw a man in the neighborhood of the house, and think that the man was the defendant. They were, however, unable to identify the man seen by them as the defendant, with any degree of certainty. The distance was such that they were unable to see his face or recognize with certainty that the person seen was the defendant. The identification is very unsatisfactory. However, we may let that pass for what it is worth. This, testimony is a two-edged sword — hurts as well as helps, the State’s contention, if true. This ends the first chapter.
On the 14th day of November, 1915, the defendant was injured in the head by being shot. He was discovered in this condition and taken to his brother’s home. Whether the shooting was accidental or not does not appear. The shooting was done in the woods where people were hunting squirrels. He claimed to have been shot by one Lloyd Richey.
There is no evidence that the upstairs rooms were not visited by some of the parties who attended to rescuing the furniture and goods from the house. There is some evidence from some of the parties that they did not observe anybody going upstairs. There is evidence of one witness that he opened the upstairs door and found the place full of smoke, and closed the door again. It does not appear, though, at what time this happened, whether at the beginning or towards the completion of the. work of rescuing the property. The inference that the State draws from this record is that some of the goods found in the possession of the defendant belonging to the Bakers were in an upstairs room at the time the fire occurred; that no one of the rescuers visited the upstairs; that some of the property in the possession of the- defendant must, therefore, have been removed from the building before the fire occurred; that the defendant must have removed it by breaking and entering, because it was found in his possession on November 14th.
The other errors assigned are involved in these two. We will consider these in the reverse order of the assignment. Did the court err in its instructions to the jury ? The instructions complained of are numbered by the court, and the eighth and ninth are challenged. The eighth instruction reads as follows:
‘ ‘ If it appears from the evidence that some person or persons did actually break and enter the dwelling house in question and take goods, clothing or household articles therefrom, you should take into consideration what goods, clothing or articles were taken from such dwelling, where the same were found, what, if anything, the defendant said with reference to his connection therewith, and all other matters shown in the evidence and bearing thereon. In this connection you are told that if you find from the evidence beyond a reasonable doubt that.some person stole from the dwelling house in question the clothing or articles or some of them introduced in evidence in this case, by breaking and entering said building with intent to steal the same, and you further find beyond a reasonable doubt that recently thereafter such property thus stolen, if any, was found in the possession of the defendant, then, in such case, you would be warranted in concluding that the defendant stole the property, if any, thus found in his possession, by breaking and entering said building with intent to steal such property, unless the facts and circumstances shown by the evidence raise in yotir minds a reasonable doubt as to whether he did not come honestly into such possession.*303 But if the facts and circumstances do raise such reasonable doubt, then you would not be warranted in drawing such conclusion from such recent possession, if established. ’ ’
This instruction standing alone does not express the true rule, and was very prejudicial to defendant’s rights, in view of the record here made. It will be noticed, from a reading of this instruction, that the court said to the jury that, if some person stole from this building the articles -found in the possession of the defendant, and if the stealing was accomplished by breaking and entering the building, and if, recently thereafter, some of the property so stolen was found in the possession of the defendant, the jury would- be warranted in concluding that the defendant stole the property thus found in his possession, by breaking and entering the building with intent to steal, “unless the facts and circumstances shmvn by the evidence raise in your minds a reasonable doubt as to whether he did not come honestly into such possession.” It must be borne in mind that this record discloses, if the State’s evidence is to be relied upon, that, after the fire was discovered, parties came to the house, broke into the house in large numbers, removed from the building all the property that could be removed, placed it in the yard outside the building as rapidly as removed, care being taken only to see that it was placed where the fire would not reach it; that there was no distinction evidenced as to what portion of the building was visited by these different parties, and no positive evidence as to what goods were removed from the building; that, but a few hours before this occurred, the defendant was seen in the neighborhood of the house. Whether he was there at the time the goods were being removed, or after they were removed, does not appear. There is nothing to show who the people were who visited the house and had. access to this property and aided in removing it, except the two witnesses who were called -for the State. There is no-direct evidence that the building was broken and entered after the Bakers left, and before these rescuing parties' arrived.
In the ninth instruction, the court stated the correct rule, in which he said to the jury that possession of the goods stolen does not, in itself, create a presumption, or amount to prima-facie proof that the possessor is guilty of breaking and
“In determining what weight and effect should be given in such case to the fact of recent possession, you should take into consideration the time which has elapsed between the taking of the goods and the finding of them in the possession of the defendant, if you find beyond a reasonable doubt they were so found in this possession, the place from where they were taken, and the distance therefrom to the place where the said goods or articles were found in his possession, if you find they were so found, the kind of property, whether easily transferable or not, what, if anything, was said at the time by the defendant, and all other facts and circumstances tending to explain said possession, or tending to show whether the defendant came into possession of said property fairly ' and honestly.”
Now it is clear that, if a consideration of the facts recited by the court, tending to explain possession, raised a reasonable doubt as to whether the defendant committed the breaking and entering, he could not be convicted even though the jury were satisfied that he did not come into possession of the goods fairly and honestly. The facts and circumstances may disclose that he did not come into possession of the goods fairly and honestly, and yet leave a reasonable doubt as to whether he broke ’and entered the building in securing the possession. This question has been before this court be
“The most that can be required of him (the defendant) in such cases is that the circumstances be such as to raise a reasonable doubt whether the possession has been acquired otherwise than by the crime charged.”
And this even though the explanation is not satisfactory to the jury, and even though it does not show that he came by the possession of the goods honestly, and even though it might affirmatively appear that he came into possession of the goods dishonestly. See cases cited. We are satisfied that the court gave a wrong direction to the jury in the respect indicated in the instructions quoted.
See, also, State v. Brady, 121 Iowa 561. In this case, the court told the jury that possession of stolen property would be presumptive evidence of guilt, unless he showed the possession to have -been obtained honestly and fairly. The court said:
“If, for instance, the jury believed from the testimony that some unknown person committed both the burglary and larceny, and thereafter sold or delivered the harness to the defendant, who> received it knowing it to have been stolen, he could not be said to have obtained possession either honestly or fairly, and under the doctrine of the instruction such possession would justify his conviction. It needs no argument, however, to show such a conviction could not be sustained. ’ ’
We have assumed, in the consideration of this case, that the goods found in the possession of the defendant on the. 14th day of November were in the Baker house at the time they left on the morning of the 3d of July, 1915. We have assumed that the defendant was seen by one of the State’s witnesses in the middle' of the road on the 3d of July, 1915, about 1 o’clock in the afternoon. We assume that this was somewhere near the house that was burned.
It is the contention of the State that none of the property in the upstairs rooms was removed; that some of the property found in the possession of the defendant was in the upstairs rooms at the time the Bakers left; but the evidence does not show that property was not removed from the upstairs rooms. Nor does the evidence affirmatively show that the property found in the possession of the defendant was not removed by the rescuing party during the progress of the fire. Two witnesses were called for the State who testified that they did not visit the upstairs, and did not remove any property from the upper rooms; but they do not say, nor does anyone say, that others in the rescuing party did not visit the upstairs rooms and remove the property therefrom.
The court said to the jury:
“If it appears from the evidence that some person did actually break and enter the dwelling house in question, and you find beyond a reasonable doubt that some person stole from the dwelling house in question the clothing or articles introduced in evidence by breaking and entering the building with intent to steal the same, and you further find that the property so stolen was soon afterwards found in the possession of the defendant, then you would be warranted in finding the defendant guilty.”
Under this instruction, it was incumbent upon the jury to find that someone actually broke and entered the building; that he broke and entered with intent to commit larceny. If they so found, and found the further fact that some of the property which was the subject of larceny was found in the possession of the defendant, then they would be warranted
Upon this record, we think the court should have sustained defendant’s motion for a directed verdict. For the errors pointed out, the case is Reversed and Remianded.