STATE of Iowa, Appellee, v. James Clifford NEWMAN, Loren Robie Wilson, and Delbert Max Vanderpool, Appellants.
No. 64760.
Supreme Court of Iowa.
Dec. 23, 1981.
Lastly, we take limited note of the testimony of Dr. Taraska, who, as earlier indicated, was called by Melva‘s attorney and guardian ad litem. Dr. Taraska‘s medical background includes pediatric training and a fellowship at the Mayo Clinic in infectious diseases.
Dr. Taraska treated Eugenia during the months of her hospitalization and subsequently as an outpatient. He also attended David and has followed his hospitalization. Dr. Taraska treated Melva only for ringworm infecting her scalp. As a result of the foregoing, he also had numerous contacts with Denise.
We accept Dr. Taraska‘s testimony of his diagnoses, treatment and prognoses of the conditions for which he attended each of the three children. We also give weight to Dr. Taraska‘s testimony relating to Denise‘s failure to give Eugenia proper post-hospitalization care. According to Dr. Taraska, this included what he deemed to be poor nutritional provision, poor hygienic care, poor cooperation in performing rehabilitative exercises and inadequate treatment of skin and open burn wounds. Such evidence bears upon Denise‘s lack of care in supervising her children, and is thus relevant to the issue here. We accord no weight to other opinion evidence given by Dr. Taraska.
Without elaborating further upon the extensive record before us, we have no difficulty in concluding that Melva has suffered harmful effects as a result of Denise‘s failure to exercise a reasonable degree of care in supervising Melva. The evidence upon which we base our determination is clear and convincing. Melva is a child in need of assistance.
AFFIRMED.
Nicholas S. Krpan, Gerald R. Ralph and William L. Kutmus, Des Moines, for appellants.
Thomas J. Miller, Atty. Gen., Julie F. Pottorff, Asst. Atty. Gen., and Dan L. Johnston, Polk County Atty., for appellee.
McCORMICK, Justice.
This is a consolidated appeal by defendants James Clifford Newman, Loren Robie Wilson, and Delbert Max Vanderpool from convictions and sentences for second-degree burglary under sections
Defendants waived a jury, and the cases were jointly tried to the court. The State‘s evidence was presented by stipulation. It showed that Denny Hughes heard a drilling sound from a laundromat next door to his place of business in Des Moines. The laundromat was open to the public at the time. When Hughes went next door to investigate, he observed defendant Wilson drilling on the lock of a coin changing machine with an electric drill. Defendant Newman was nearby. When Hughes asked what they were doing, the two men said they were “fixing the machine.” Defendant Vanderpool entered the premises and assured
When the police arrived, defendants were fleeing from the scene. They were apprehended after a chase. They did not have permission to be drilling into the coin changer. It contained $200 at the time.
By motions to dismiss and for judgment of acquittal defendants alleged the facts did not constitute burglary. The trial court overruled their motions and, after submission of the case, found defendants guilty of the charge. Following sentencing, they appealed.
They seek reversal on two grounds. One is the alleged vagueness and overbreadth of section
The only question presented under the record is whether breaking or entering a coin changing machine can constitute burglary under section
The legislature may define crimes as it wishes subject to constitutional constraints. In defining burglary, section
Any person, having the intent to commit a felony, assault or theft therein, who, having no right, license or privilege to do so, enters an occupied structure or area enclosed in such a manner as to provide a place for the keeping of valuable property secure from theft or criminal mischief, such occupied structure or place not being open to the public, or who remains therein after it is closed to the public or after the person‘s right, license or privilege to be there has expired, or any person having such intent who breaks an occupied structure or other place where anything of value is kept, commits burglary.
Our objective is to ascertain legislative intent. We must look to the object to be accomplished, the evils and mischief sought to be remedied, or the purpose to be subserved, and place on the statute a reasonable construction to accomplish the evident legislative intent. State v. Johnson, 216 N.W.2d 335, 337 (Iowa 1974). Because the statute is penal, the rule of strict construction comes into play in doubtful cases. State v. Welton, 300 N.W.2d 157, 160 (Iowa 1981). However, the rule of strict construction is not to be used to inject doubt when legislative intent is evident through a reasonable construction of the statute. State v. Lindsey, 165 N.W.2d 807, 810 (Iowa 1969).
We have recognized that section
They have two elements in common. The common elements are the requisite intent and the absence of authority. The requisite intent is “the intent to commit a felony, assault or theft [in the place involved].” Id. The requisite absence of authority is “no right, license or privilege” to do the act involved. Id. When those elements exist, a person is guilty of burglary who (1) “enters an occupied structure or area enclosed in such a manner as to provide a place for the keeping of valuable property secure from theft or criminal mischief, such occupied structure or place not being open to the public,” or (2) “who remains therein after it is closed to the public or after the person‘s right, license or privilege to be there has expired,” or (3) “who breaks an occupied structure or other place where anything of value is kept ....” Id.
State v. Sangster, 299 N.W.2d 661, 662-63 (Iowa 1980). Because these definitions are alternative, they are independent and disjunctive. They are not dependent or conjunctive.
The section uses two terms in describing property in which burglary may occur: an “occupied structure” and an “area enclosed.” An “occupied structure” is separately defined, but an “area enclosed” is not. See
A coin changer is nevertheless covered by the statute if it is in an “area enclosed in such manner as to provide a place for the keeping of valuable property secure from theft or criminal mischief.” It seems self evident that a coin changing machine is such a place.
Because these words are not technical and do not have a peculiar and appropriate meaning in law, we must construe them “according to the context and the approved usage of the language.”
This conclusion is consistent with evident legislative intent. The statute is substantially broader than common law burglary and supplants a number of prior statutory offenses. See 4 J. Yeager and R. Carlson, Iowa Practice: Criminal Law and Procedure § 293 (1979). The gist of the present offense is a trespass against a secure place with the requisite intent. The trespass element distinguishes the offense from theft, and the intent element distinguishes it from criminal mischief. The ordinary meaning of enclosed area and this distinction are reflected in II Iowa Uniform Jury Instructions No. 1313 (1978):
An “enclosed area” is one which is so designed, built or enclosed that it is secure for the keeping of valuable property, and it reasonably appears the area was meant to be secure from theft or criminal mischief. An “enclosed area” need not be a structure or building.
Although statutory language differs, courts in other jurisdictions have recognized that similar places can be the subject of burglary. See State v. Wilson, 7 Ariz.App. 384, 439 P.2d 831 (1968) (a vending machine is an “other place of safekeeping for money, goods or other property” under a statute proscribing possession of burglary tools); Estevez v. State, 189 So.2d 830 (Fla.Ct.App. 1966) (a soft drink machine is a “safe or other depository” within a statute proscribing possession of burglary tools); People v. Oliver, 129 Ill.App.2d 83, 262 N.E.2d 597 (1970) (a vending machine is a “depository designed for the safekeeping of property” under a statute proscribing possession of burglary tools—rule of strict construction recognized); Shumate v. Commonwealth, 433 S.W.2d 340 (Ky.1968), cert. denied, 394 U.S. 993 (1969) (a soft drink vending machine is a “storehouse” or “warehouse” within offense of storehouse breaking); Commonwealth v. Marganon, 370 S.W.2d 821 (Ky.1963) (a vending machine outside a building is a “place” where goods, wares or merchandise is kept under a statute proscribing possession of burglary tools); State v. Stoner, 473 S.W.2d 363 (Mo.1971) (a coin box of a pay telephone is a “safe” under a statute prohibiting possession of tools for breaking into a safe); Annot., 45 A.L.R.3d 1286 (1972).
We hold that breaking or entering a coin changing machine can constitute burglary under section
AFFIRMED.
All Justices concur except REYNOLDSON, C. J., and UHLENHOPP, McGIVERIN and LARSON, JJ., who dissent.
UHLENHOPP, Justice (dissenting).
I think defendants’ conduct does not come within section
Any person, having the intent to commit a felony, assault or theft therein, who, having no right, license or privilege to do so, enters an occupied structure or area enclosed in such a manner as to provide a place for the keeping of valuable property secure from theft or criminal mischief, such occupied structure or place not being open to the public, or who remains therein after it is closed to the public or after the person‘s right, license or privilege to be there has expired, or any person having such intent who breaks an occupied structure or other place where anything of value is kept, commits burglary.
(Emphasis added.)
The section initially uses two terms in describing property which may constitute the subject of burglary: an “occupied structure” and an “area enclosed.” What do those two terms encompass?
An occupied structure is defined thus in section
An “occupied structure” is any building, structure, land, water or air vehicle, or similar place adapted for overnight accommodation of persons or occupied by persons for the purpose of carrying on business or other activity therein, or for the storage or safekeeping of anything of value. Such a structure is an “occupied structure” whether or not a person is actually present.
The other expression in the burglary section, “area enclosed,” does not appear to be statutorily defined. The “area” must be enclosed in such a manner as to provide a place for the keeping of valuable property secure from theft or criminal mischief. At three points the section speaks of the area as a “place“: “enclosed in such manner as to provide a place,” “such occupied structure or place not being open to the public,” and “breaks an occupied structure or other place.” (Emphasis added.) The word “place” in the section obviously refers to the “area enclosed” which is named at the beginning.
As to the meaning of area enclosed, the word “area” does not convey the impression of an object, such as a money changer. Area is defined thus in Black‘s Law Dictionary 136 (4th ed. 1968):
A surface, a territory, a region. Fleming v. Farmers Peanut Co., C.C.A.Ga., 128 F.2d 404, 406. Any plane surface, also the enclosed space on which a building stands, the sunken space or court giving ingress and affording light to the basement of a building, a particular extent of surface. State v. Armstrong, 97 Neb. 343, 149 N.W. 786, 788, Ann.Cas. 1917A, 554. An inclosed yard or opening in a house; an open place adjoining a house. 1 Chit.Pr. 176. The site of a house; a site for building; the space where a house has stood. The ground on which a house is built, and which remains after the house is removed. Brissonius; Calvin.
Webster‘s definition of “area” likewise does not give the impression of an object: “a level piece of ground,” “areaway.” Webster‘s New Collegiate Dictionary 60 (1976).
Similarly, the word “place” does not convey the impression of an object, even disregarding the antecedent “area enclosed.” Black defines place thus:
This word is a very indefinite term. It is applied to any locality, limited by boundaries, however large or however small. It may be used to designate a country, state, county, town, or a very small portion of a town. The extent of the locality designated by it must generally be determined by the connection in which it is used. Robinson v. State, 143 Miss. 247, 108 So. 903, 905; Hammell v. State, 198 Ind. 45, 152 N.E. 161, 163; State v. Cahalan, 204 Iowa 410, 214 N.W. 612, 613. In its primary and most general sense means locality, situation, or site, and it is also used to designate an occupied situation or building. Burns v. McDaniel, 104 Fla. 526, 140 So. 314, 316.
Black‘s, supra, at 1307.
Webster‘s definition of place is long. Illustrative of the relevant items are “an indefinite region or expanse: area,” or “a building or locality used for a special purpose.” Webster‘s, supra, at 876. None of the items in the Webster definition refers to objects as distinguished from locales.
At common law,
burglary required a breaking and entry into the dwelling house or mansion house of another, and all outhouses within the curtilage were protected, since they were held to be parts or parcel of the dwelling house. An exception to this general rule held that breaking into a church constituted burglary; this was said to be justified on the ground that the church is the habitation of God.
13 Am.Jur.2d Burglary § 3, at 320 (1968); see also 12A C.J.S. Burglary § 27 (1980).
Decisions from other jurisdictions are distinguishable on the basis of the language of their statutes. In 1963 the Kentucky Court of Appeals applied the following statute in Commonwealth v. Marganon, 370 S.W.2d 821 (Ky.1963):
Any person who has possession of any tools, implements or other things used by burglars for housebreaking, forcing doors, windows, locks or buildings or other places where goods, wares, merchandise or money is kept, with the intention of using them burglariously shall be confined in the penitentiary for not less than two nor more than ten years.
(Emphasis added.) The Commonwealth charged that the defendant possessed various burglary tools and had the intention “to force a lock on a place where goods, wares, merchandise, and money was kept, to-wit: A Royal Crown soft-drink vending machine ....” A “lock” was expressly covered by the statute. The enumeration of locks and the other subjects would bring vending machines within “other places” under the doctrine of noscitur a sociis—“the meaning of particular terms in a statute may be ascertained by reference to words associated with them in the statute.” 73 Am.Jur.2d Statutes § 213, at 406-07 (1974). See Wright v. State Board of Engineering Examiners, 250 N.W.2d 412 (Iowa 1977). Section
A Florida statute defined a “burglarious tool” in a far different manner than our section
Whoever makes or mends, or begins to make or mend, or knowingly has in his possession any engine, machine, tool or implement adapted and designed for cutting through, forcing or breaking open any building, vault, safe or other depository, in order to steal therefrom money or other property, or to commit any other crime, knowing the same to be adapted and designed for the purpose aforesaid, with intent to use or employ or allow the same to be used or employed for such purpose, shall be punished by imprisonment in the state prison not exceeding ten years, or by fine not exceeding five thousand dollars.
The Florida court evidently held that a soft drink machine is an “other depository.” It merely stated, “The evidence was more than sufficient that the tire iron was a ‘burglarious tool’ and that defendants intended to use it to commit a crime.” Id. The Iowa statute does not use the “depository” language, and the Florida statute does not contain language comparable to the “remains therein” and “to be there” language of the Iowa statute.
Likewise distinguishable is the 1968 case of State v. Wilson, 7 Ariz.App. 384, 439 P.2d 831 (1968). There the statute provided:
A person who makes, keeps or sells, or has in his possession, a false key or other instrument or contrivance for the purpose of entering a building, or a safe, chest, trunk or other place of safekeeping for money, goods or other property, or any place where freight is on vehicles for transportation, or a railway car or vehicle kept or used for transportation of passen-
gers or freight, with intent to commit theft or other crime in any of such places, is guilty of a felony.
Id. at 385 n.1, 439 P.2d at 832 n.1. The associated words, “safe, chest, trunk or other place of safekeeping for money, goods or other property,” brought vending machines within the ambit of the statute, although the point was not directly involved in the appeal. The defendant‘s contentions on appeal were illegally obtained evidence, lack of corroboration of accomplice, insufficient evidence of criminal intent, and excessive sentence.
The State‘s best authority, perhaps, is the 1968 decision of Shumate v. Commonwealth, 433 S.W.2d 340 (Ky.1968). The court held that a vending machine in which soft drinks were placed came within a Kentucky statute:
Any person who feloniously, in the night or day, breaks any warehouse, storehouse, office, shop or room in a wharf, steam or other boat, whether such place is or is not a depository for goods, wares or merchandise, and whether the goods, wares and merchandise are or are not exposed for sale, with intent to steal, or who feloniously takes therefrom or destroys anything of value, whether the owner or other person is or is not in such house, office, room or shop, shall be confined in the penitentiary for not less than one (1) nor more than five (5) years.
Ky.Rev.Stat. § 433.190 (1973). The court concluded, “The fact that [vending machines] are movable, unlike a permanent structure, should not be a controlling factor in determining what a storehouse is; that they do not have roofs but are enclosed in metal cabinets should not be important.” 433 S.W.2d at 343. In reaching that conclusion the court stated:
In undertaking a proper construction of KRS 433.190, it is interesting to keep in mind that this statute was enacted in 1893 when vending machines were unknown. It is also of some historic interest to note that the Rules of Criminal Procedure have undergone some change from the strict technical rule of construction to a somewhat modified, more liberal, practical construction.
Id. Contrast State v. Davis, 271 N.W.2d 693, 695 (Iowa 1978) (inapplicability of escape statute under the facts: “‘[A]n act penal in nature, generally one which imposes punishment for an offense against the state, is interpreted strictly.‘“); State v. Burtlow, 299 N.W.2d 665, 669 (Iowa 1980) (“Because the statute is penal, it must be construed strictly. Doubts are resolved in favor of the accused.“). Again the statute involved in Shumate contained no language, as in our statute, that the person “remains therein” after his right “to be there” has expired.
In 1970 an Illinois Appellate Court decided that a locked vending machine constitutes “any depository designed for the safekeeping of property.” People v. Oliver, 129 Ill.App.2d 83, 89, 262 N.E.2d 597, 598 (1970). The statute provided:
Whoever possesses any key, tool, instrument, device, or any explosive, suitable for use in breaking into a building, housetrailer, watercraft, aircraft, motor vehicle as defined in the Illinois Motor Vehicle Law, approved July 11, 1957, as amended, railroad car, or any depository designed for the safekeeping of property, or any part thereof, with intent to enter any such place and with intent to commit therein a felony or theft shall be imprisoned in the penitentiary from one to 2 years.
Id. at 87, 262 N.E.2d at 598. The case is quite similar to Estevez, and what was said about that decision need not be repeated here.
In 1971 the Missouri Supreme Court decided State v. Stoner, 473 S.W.2d 363 (Mo. 1971). The statute involved provided:
Any person who makes, mends, designs or sets up, or who has in his custody or concealed about his person any tool, false key, lock, pick, bit, nippers, fuse, force screw, punch, drill, jimmy, bit, or any material implement, instrument, or other mechanical device whatsoever, adapted, designed, or commonly used for breaking into any vault, safe, railroad car, boat,
vessel, warehouse, store, shop, office, dwelling house, or door, shutter or window of a building of any kind, shall be guilty of a felony, and upon conviction thereof, shall be punished by imprisonment in the penitentiary for not less than two years, nor more than ten years.
473 S.W.2d at 366-67. The court stated:
The question simply is whether a “safe” encompasses a coin receptacle in a pay telephone so that appellant‘s conviction of possessing tools and implements for the purpose of breaking into the receptacle may stand. Webster‘s Third New International Dictionary defines “safe” as “1: a place or receptacle to keep articles safe: as * * * b: a metal box or chest sometimes built into a wall or vault to protect money or other valuables against fire or burglary.” Black‘s Law Dictionary, Revised Fourth Edition, defines “safe” as “a metal receptacle for the preservation of valuables.” The above-related evidence clearly shows that the telephone company‘s pay telephone was designed so that coins deposited in it and falling into the coin box were protected against break-in by two locks and a double-headed nail. The purpose of the design was to protect the valuables, i.e., the coins, belonging to the company. The coin box is constructed of heavy metal albeit not as thick as Mr. Peterson described the Diebold Company safes to be. There can be no doubt that the metal coin box is a “safe” within the statute, and this accords with the statement in 33 A.L.R.3d 798, 846, “The courts have tended to take an expansive view of the types of depositories included within the ambit of the respective statutes relating to burglars’ tools.”
473 S.W.2d at 368. Cf. Bagwell v. State, 51 Ala.App. 663, 288 So.2d 450 (1973) (“structure” does not include a coin operated washing machine); Hulbert v. State, 44 Ala.App. 300, 208 So.2d 94 (1968) (or a pay telephone).
The holding of the court majority that section
The trial court should have dismissed the charge as made. I would reverse the judgment.
REYNOLDSON, C. J., and McGIVERIN and LARSON, JJ., join in this dissent.
IOWA CIVIL RIGHTS COMMISSION, Appellee, v. CITY OF DES MOINES/PERSONNEL DEPARTMENT, Appellant.
No. 65290.
Supreme Court of Iowa.
Dec. 23, 1981.