73 Iowa 355 | Iowa | 1887
I. Under the statute of this state, burglary of a dwelling-house is of two degrees, — the first, the breaking and entering in the night-time, with the intent to commit a felony; the second, the breaking and entering in the day-time. The punishment for the first degree is imprisonment in the penitentiary, not to exceed twenty years, in the absence of aggravation by reason of the offender being armed, or committing an assault upon any person in the dwelling, or being aided by confederates present at the commission of the crime, and for the second is imprisonment in the penitentiary for not more than ten years, or fine of not to exceed $100, and imprisonment in the county jail for not more than one year. It will be observed that, in the estimation of these statutes, there is a wide difference in the heinousness of the degrees of this offense.
IY. "We think the district court should have sustained the motion for a new trial, on the ground that the evidence wholly failed to show that the offense was committed in the •night-time. The prejudice resulting to defendant from the "conviction, in the absence of evidence showing such fact, is apparent.
For the error in overruling the motion for a new trial, the judgment of the district court is
Reversed.