87 Iowa 86 | Iowa | 1893
“15. If you find that the defendant was guilty of breaking and entering the house of the said Sartorious i^ent charged, but have a reasonable doubt as to whether such breaking an¿ eBpemig 'was done in the nighttime,*89 then the defendant would not be guilty of the offense of burglary, but he would, under such circumstances, be guilty of the offense of breaking and entering in the daytime.;;
It is said that the giving of this instruction is erroneous, because the defendant is not charged with such a crime, and there is no evidence to sustain it. In State v. Frahm, 73 Iowa, 355, this court held that “burglary of a dwelling house is of two degrees, — the first, the breaking and entering in the nighttime with intent to commit a felony; the second, the breaking and entering in the daytime.” Code, section 4465, is as follows: “Upon an indictment for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the offense, if punishable by indictment.” The statute is authority for the instruction. Breaking and entering in the daytime is a degree of the offense charged. As to there being no evidence of such an offense, we need only say there is testimony on which the jury found that there was a breaking and entering at some time, with the felonious intent necessary to constitute burglary. This breaking and entering must have been either in the nighttime or in the daytime. If the evidence did not, with that degree of certainty necessary to convict, show the offense to be of the highest degree, it was the duty of the jury, under a familiar rule, to find it of the lower degree; and hence, if there was evidence to convict of burglary, — which will be noticed hereafter, — it is certainly sufficient to sustain a verdict for the lower degree.
V. One G-erstenberg, whose name was not in the indictment, and who was not before the grand jury, was used as a witness for the state, of which complaint is made. Notice was served under the provisions of the statute for such cases, and in-argument the sufficiency of the notice is not questioned, nor does it appear insufficient. There is no error in this respect.
‘ ‘Had conversation with defendant. He sent notice to me that he wanted to see me, after the police trial. Saw defendant first before police trial. Saw defendant again after or a little before the police trial, on the twenty-ninth day of July, in police court. He wanted to see me in county jail. I went there. Harvey Jones, sheriff, was there; also Officer Winchelmann and defendant. When I came in, Winchelmann told defendant that I was Sartorious, if he (defendant) wanted to see me. He (defendant) said he wished Winchelmann would go out. Winchelmann went out. He (Jones) refused to go. Defendant then told me that if I promised to say nothing about this money, as it was not my money, he would hand back the whole stuff, — he means the watches. By Mr. Gould: Don’t state what he means; just state what he said. Answer. All right; that is what he said: ‘You only trust me fifteen or twenty minutes, and the other man will bring you the stuff back again.’ I said I would not trust Jesus Christ. He said: ‘You have to trust me.’ I suppose there was— Mr. Gould: Don’t state what you suppose. Anstver. I said: ‘I can’t tell no lie.’ He*92 said: ‘You can say you were mistaken, but say that I make it easy for him if be band back my stuff, — that is all.’ When they brought him over to the police court again, be wanted to see me again, — I guess be got postponed over to the grand jury, — and be said: ‘I band you back your stuff.’ The dwelling house was occupied by myself and family on July twenty-ninth last.”
This evidence was admitted without objection, as the record discloses, and there is nothing to indicate its incompetency. The statements seem to have been purely voluntary. We may notice, in this connection, a claim that the court erred in instructing the jury to consider the circumstances under which such statements were made, and to disregard them if made “by reason of hopes or inducements held out to him;” otherwise, to give them such weight as, under the circumstances of their being made, the jury regarded them entitled to. It is claimed that the court should have instituted an inquiry out of the presence of the jury to ascertain whether the statements were voluntary or otherwise. Conceding that the situation might be such as to justify or require such a proceeding, nothing in this case rendered it necessary. The testimony was clearly admissible, and its admissibility was not questioned. It is, of course, the duty of the court to determine the admissibility of such evidence, whether with or without objections, and it is not error for the court to instruct the jury as was done in this case. See State v. Fidment, 35 Iowa, 541. The action of the court in this case is in harmony with the rule there announced.
VIII. It is said that the verdict is not sustained by the evidence. In some respects the testimony is not strong, but there are facts well established which, considered in the light of his statements, leave little room for doubt of his complicity in the crime committed.
The judgment is aeeiemed.