157 Iowa 534 | Iowa | 1912
— The defendant was charged with burglariously breaking and entering a certain building or storehouse of the Maryland Packing Company, wherein goods and merchandise were kept for sale and deposit, with the felonious intent then and there to commit the crime of larceny. The alleged crime was committed about 10 :30 p. m. on November 22, 1910. The storehouse contained a large amount of dressed poultry which were in course of preparation for the Thanksgiving trade. The employees of the packing-company were at work in the building until about 10 p. m., and left at that time. The building in question was situated at the northwest corner of West Second street and Court avenue, in the city of Des Moines. It extended northward on the west side of Second street to an alley. At the north end of this building, and facing- east and opening on the sidewalk on West Second street, was a large sliding-door about twelve feet by twelve feet in dimensions. This sliding door was hung from, and rolled upon, an iron track on the inside of the building. When closed, the door fitted into a crevice or 'groove at the north end, and fastened by means of a hook, which attached the door to a staple in the jamb at the north end. At the south end of the door on the inside attached to the ceiling and running thence perpendicular to the floor was a large four by four post. This four by four post held the south end of the door in position, and the door slid between the wall and the four by four post. About two and one-half feet from the floor was a two by four firmly attached to the four by four post, and running thence parallel to the wall and floor southward along the inside of the east wall of the building, the south end of which two by four was fastened to a partition wall.
If it had been admitted for that purpose, it could only prove that the defendant was not guilty of any crime or felonious intent up to that point of time. It was not claimed by the state that he was. Even if he had come to the 'building, with the intent only to see the manager, he was none the less guilty, if, after discovering the absence of the manager, he then formed the intent to break, enter, and steal. There was no error in this ruling of the trial court.
There is a conflict in the authorities on this question. The numerical majority of the cases favor the contention of the defendant to the effect, that, if a door be partly open, it is not a “breaking” to push the same further open. Indeed, the older cases were practically unanimous to this effect. Commonwealth v. Steward, 7 Dane, Abr. 136; Commonwealth v. Stephenson, 8 Pick. (Mass.) 354; Commonwealth v. Strupney, 105 Mass. 588 (7 Am. Rep. 556); Rex v. Smith, 1 Moody (Eng.) 178; State v. Long, 5 Ohio Dec. 617; Timmons v. State, 34 Ohio St. 426 (32 Am. Rep. 376); May v. State, 40 Fla. 426 (24 South. 498); Smith v. Commonwealth (Ky.) 128 S. W. 68 (27 L. R. A. (N. S.) 1023). See, also, cases collated in 6 Cyc. 174. In the later cases some of the courts have repudiated this rule as being unreasonable and illogical. The first of these cases appears to be Murmutt v. State (Tex. Cr. App.) 67 S. W. 508. This has been followed by Claiborne v. State, 113 Tenn. 261 (83 S. W. 352, 68 L. R. A. 859, 106 Am. St. Rep. 833); People v. White, 153 Mich. 617 (117 N. W. 161, 17 L. R. A. (N. S.) 1102, 15 Ann. Cas. 927). The majority of this court are disposed to follow the lead of the last cited cases, and to hold that, if a door he so nearly closed that the accused could not enter through the opening without pushing the door further open, then such pushing will constitute a “breaking” within the meaning of the law.
The error, however, is wholly technical, and without prejudice under the undisputed facts in the case. The alleged flight involved here was so closely connected in point of time with the commission of the alleged offense that it was clearly admissible in evidence regardless of the application of the rule to which we have referred. In other words, it was not necessary for the state to bring such circumstance within the rule indicated in order to render it admissible. If admissible, it had some tendency indicative of guilt. The weight of it was to be determined by the jury like that of any other circumstance and in the light of all the evidence in the case.
Other minor questions are argued. We discover no error in the record.
The judgment below must be — Affirmed.