156 Iowa 603 | Iowa | 1912
It is the contention of the state that on September 11, 1911, a powder house, located about two and one-half miles from Oskaloosa, was broken and entered, and that a box of dynamite was stolen therefrom. The three defendants were discovered in a box car at the Iowa Central Yards at Oskaloosa on the morning of October 4, 1911. They were arrested and charged with the crime. Various circumstances were relied on as connecting them
I have lived in Oskaloosa about twenty years. Own a powder house, which is located about two and one-half miles southwest from town. I keep dynamite caps and sporting powder and mine powder in this powder house. The pow*605 dér house was broken into some time during the fall. The lock was broken off. I did not know until the 11th or 12th of September that it had been broken into. I made a check of the dynamite, and found a twenty-five pound box of forty percent dynamite short. I was not certain as to the check then for a long time. I had not made any check on the caps at all. There was a horse blanket in the powder house. Exhibit A and B is a part of the blanket that was in the powder house at the time. Q. What would you say as to the box ? Are you then certain that was similar to the box taken out of your powder house? A. I could not say if that is the box. It is the same kind of dynamite. The box is similar to the one that was taken out. It is a twenty-five pound box. I own the powder house. It goes under the name of the Oskaloosa Powder Company. It was a Yale lock on the house at the time. I took the broken lock to Arl Walls. Exhibit D, I think, is a piece of the blanket. I would not be able to identify the dynamite or any broken box that way. I could not, tell forty percent from 60 percent dynamite, because I sell it all in boxes. I could identify the caps as being the same as I handled. Exhibit E is a box similar to the ones I handle. I first learned that the powder house was broken into on Monday. My teams were out there last on Eriday, and the next Monday, I think it was, that Hamilton’s man was out there, and he notified me that my lock was broken, and I went out myself and took two new locks.
(Cross-examination) : I think it was the 11th or 12th of September that the powder house was broken open. I don’t know anything about who broke open the powder house, nor anything about that. I offered a reward of' $50 for the parties that broke in the house. I think both of the loeks have been tampered with since I put them on after 11th or 12th of September. I couldn’t state the date. Hamilton & Hamilton handle the same kind of dynamite and caps. I sell it wholesale and retail. One can get this same kind of dynamite most anywhere,. I never checked up the caps. I have been off on my checking of the caps, and can’t say whether I am short on caps or not. There was a twenty-five pound box of dynamite short. I send people out there to get dynamite, and wouldn’t know how much they took until I made a check of it. I missed this*606 twenty-five pound box after my last checking. I do not know when it- was taken out, or how. I do not know anything about that.
(Redirect examination) : If any dynamite goes out of there, I would keep a check on it.
(Recross-examination) : If the man I sent out after the dynamite did steal it, or make a mistake, I wouldn’t know anything about it. I check it as it is brought by my office.
Some slight additions are made to the foregoing by appellee’s amended abstract. It will be noted from the foregoing that this witness testified to nothing of his own personal knowledge that tended to prove a burglary, unless it be the fact of the discovery of the broken lock. No witness testified who professed to know anything about the condition of the building before or after the alleged burglary. The same must be said of the alleged larceny of the box of dynamite from the building. Both the entry and the larceny were assumed as a mere inference, and no competent witness was called to testify to any fact in proof thereof.
If this feature of the record could be overlooked, the question would still remain whether the circumstances proved were sufficient to connect the defendants with the burglary. Giving full credence to the evidence of Scoles (and some of it impresses us as incredible), we think it was clearly insufficient to warrant a conviction of these defendants for the alleged burglary on September 11th. It appears from the evidence of the state that considerable dynamite was found by different persons in different places a mile or two remote from each other. All of these discoveries were made after the arrest of these defendants, except the one made by Scoles. If the finding of dynamite in the month of October was evidence of the burglary of September 11th, then many persons came under the cloud. Granting that these circumstances jvere fairly admissible as circumstantial evidence, they were nevertheless far from
The judgment of conviction must be — Reversed.