191 Iowa 19 | Iowa | 1920
Lead Opinion
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.
Dissenting Opinion
(dissenting). I. On the question whether certain testimony was rightly received over objection, it seems to me it is not material that objections made to other testimony were sustained. Surely, correct rulings excluding testimony do not cure erroneous rulings in receiving testimony. Among other things, the following testimony was admitted on part of the witness Kelso: He had stated that he had been a member of the police force in Ames for something like two years. Over objection that it was incompetent, irrelevant, and immaterial, he added that, during that time, he had had experience with tools used in the commission of the crime of burglary. After a question such as is about to be set forth had not been permitted to be answered, because it was leading in form, the witness was asked this:
“I will ask you whether or not those keys are such as are commonly used by people in legitimate ways. ’ ’
Objection was made that this was leading, suggestive, incompetent, irrelevant, and immaterial, and because it invades the province of the jury, and is a conclusion. Objection being overruled under due exception, the witness answered: “In my judgment they are not.” Defendant unsuccessfully moved to strike out this answer, on substantially the same grounds that were interposed to the question. The witness was next asked: “For what purpose are said keys, then, used?” Like objection was made, and this time sustained, on the expressed ground that the testimony was incompetent; that no foundation had been laid; and “that there is no showing he knows what they are used for, and the objection is sustained for that reason.” The next inquiry of which I think complaint may justly be made was this:
“Examine these exhibits, and state whether or not you know what those tools are designed, adapted, and commonly used for.”
Objections similar to the ones already set forth were made, and, under exception, overruled. But this time the answer was harmless. Then came the question asking the witness to state,
The witness Gretten said that, while acting as sheriff, he learned to know the tools and implements commonly used for burglaries and in the commission of burglaries. Over apt objection, including the one that this was not a question for expert evidence, but one for the jury, he was asked to say ‘ ‘ what these exhibits are adapted, designed, and commonly used for.” He answere d, “ B urglarizing. ’ ’
Kelso was thus allowed to say that, in his judgment, the keys in question were not such as are commonly used by people in legitimate ways. He was allowed to sáy that these keys were tools “used commonly for the'purpose of burglarizing.” He was allowed to answer a question as to “what these tools might be used for,” by answering, “Burglarizing.” For some reason, while this was permitted as to Kelso, the witness Gretten was not allowed to say “what these exhibits might be used for.” He was, however, permitted to say that the keys “were adapted, designed, and commonly used for burglarizing.”
I cannot escape the conclusion that this testimony was improperly received. If it was matter of expert knowledge, it is my opinion the witnesses had not qualified themselves to speak. If, on the other hand, the matter inquired about was one of common knowledge, then it was not to be spoken to by an expert, no matter how well qualified generally; and it was for the jury
1-a
It is suggested that no advantage can be taken of these rulings, because of lack of formal presentation on appeal. I am inclined to think the rules of presentation were sufficiently complied with. In the fifth assignment, it is said:
“Defendant complains that the court erred in allowing the witness Kelso to testify that the keys ‘were such instruments and tools as were commonly used to commit the crime of burglary.’ ” (See pages 8, 9, 10, 11, and 12 of appellant’s abstract.)
The witness Gretten was asked the same questions as to what these keys are commonly used for, and for what purpose they could be used. (See pages 21 to 23 of appellant’s abstract.) In the argument upon these assignments, it is said:
“In allowing the expert evidence of the witness Kelso to testify that the keys were made from certain materials, and in further allowing said witness to testify that they were such instruments and tools as were commonly used to commit the crime of burglary, * * * an examination of these questions, particularly with this witness Kelso, seems to counsel to be absolutely and unconditionally unfair and prejudicial, because it has invaded the province of the jury. The fact that a man has been on the police force and worn a star and a police helmet for a couple of years, who was before that a common day laborer, that he should have an expert knowledge way beyond the common observation and experience of men of real business affairs, such as we have in a country jury, we think is crowding the mourners a little too hard. * * * To say to us that he was qualified to say that these ‘are tools which are commonly used by burglars’ is absolutely wrong. * * * The jury could tell as well for what purpose these were adapted.”
Concede that, if the rules of presentation are in no wise relaxed, it is probably true that this assignment technically does not, in specific words, cover all that is, in fact, erroneous. But be that as it may, we have frequently relaxed the strictness of the rules of presentation in aid of liberty, and I can see no good
II. The majority holds that finding of burglar’s tools hidden in a tile at the top of a kitchen wall in a large basement which has two rooms raises a presumption which sends to the jury the question whether these tools were in the possession of one who is a tenant and the successor of other tenants, and where others were in possession of the building with him, and had present opportunity so to hide the tools where they were hidden. If that be sound, then the same presumption must exist, and send the question of guilty possession to the jury, where two men rent a farm, and burglar’s tools are later found buried under the soil of the farm. It is no answer to say that the finding of liquor in possession of defendant raises a presumption that he kept same for an unlawful purpose. That is, to begin with, a statute provision. In the next place, the statute presumption arises when the liquors are found in possession, and the statute does not -say what constitutes such possession. In other words, whatever may be the rule where such tools are foxmd in the possession of a party, that does not settle that finding these tools in this hollow tile constitutes finding them in possession of this tenant.
Nor is it an answer that a presumption of guilt arises from recent possession of stolen property. The rule creating such presumption also fails to define what is possession and presupposes possession; and, as there is no way of telling from the evidence when these keys were placed in the tile, therefore there is no evidence that, if there was possession, it began soon after the offense charged was committed.
Nor is it an answer to say that, if defendant be not convicted because others had access and opportunity to hide these keys where they were hidden, it could well happen that neither he nor any other person could be convicted, and that the law might fall between the two stools. No law demands that somebody must be punished; and it is quite in the contemplation of the law that sometimes the rules of evidence which are best for the greatest number do xvork that a guilty person goes without
III. In the trial of this case, defendant attempted to follow and rely upon State v. Strum, 184 Iowa 1165, 1172, and he was given the benefit of the rule in the Strum case. The State has not appealed. Therefore, it is purely gratuitous, the writing of a dictum, and going out of the road of what is here for decision, to overrule the Strum case before the ink in its report is fairly dry. And it is as much error and a gratuitous dictum to overrule State v. Lewis, 139 Iowa 405, at 408, which has stood unchallenged for long years, and upon which the Strum case is based. Aside from these considerations, the merits demand that neither the Strum case nor the Lewis case should be overruled. The Strum case clearly fixes its own limitations by its analysis of State v. Stansberry, 182 Iowa 908. And as thus limited, it merely declares that, where the charge is receiving stolen goods knowingly, and the defendant states in open court that all he denies is that he ever bought, and that, if the jury finds he has bought, he admits the buying was with guilty intent, that then it is error to permit the State to show that defendant made other purchases of like goods. It was confessed in the Strum case that such evidence is admissible for nothing except to show guilty knowledge. And it was thereupon held that there could be no legitimate reason for forcing such evidence upon tlie consideration of an untrained jury, when its only proper purpose was to prove what was confessed. It is now said that there should be a discretion as to whether such testimony of other purchases should be received. Why? For whom and for what should such discretion be permitted? For use by just one kind