State v. Abley

• Decision Date: 03 October 1899
• Citation: 80 N.W. 225,109 Iowa 61
• Parties: STATE OF IOWA v. HENRY ABLEY, Appellant
• Court: Iowa Supreme Court

80 N.W. 225

109 Iowa 61

STATE OF IOWA v. HENRY ABLEY, Appellant

Supreme Court of Iowa, Des Moines

October 3, 1899

Appeal from Franklin District Court.--HON. S. M. WEAVER, Judge.

INDICTMENT for breaking and entering a store building. From a judgment of conviction the defendant appeals.--Modified.

AFFIRMED.

Taylor & Evans and E. P. Andrews for appellant.

H. C Liggett, J. H. Scales, Milton Remley, Attorney General, and Charles A. Van Vleck for the State.

OPINION

WATERMAN, J.

The building entered was owned by the firm of Schaeffer & Reynolds. No question is made but that defendant broke and entered the store, and took goods therefrom; but it is claimed that he cannot properly be convicted of the offense charged, because the entry was made with the assent of the owners or their agent. The facts upon which this claim is based are as follows: One Clock was marshal of the town in which the building was located. Prior to the commission of the crime, Clock (as he claims, for detective purposes) had been counseling and advising with defendant, not only in relation to this particular offense, but also as to the two breaking and entering other buildings. So zealous was the officer in this questionable line of duty and so anxious was he to impress defendant with the belief that he was earnest in his criminal intentions and would keep faith in the matters plotted, that Clock alone on one occasion broke and entered another store building, belonging to one Bryan, with a key furnished by defendant, and took from it some goods. Of course, he claims that this was done merely to lead defendant on. Clock testifies that the mayor of the town had previous information from him of defendant's intention to enter the Bryan store. The mayor, who was a witness, does not testify on this point; but, however that fact may be, Clock admits that Bryan, the owner, had no such information, and that the entry was effected without his knowledge or consent. One Will Reynolds, a clerk in the employ of Schaeffer & Reynolds, had a key to the building in question in this case. Shortly before the commission of the offense charged, Clock borrowed this key to get an impression from which defendant could make another key which would open the door, and such a key was afterwards made by defendant. At this time Clock told Reynolds, the clerk, the use which he wished to make of the borrowed key, and also of defendant's criminal purpose. The breaking and entering were done in the nighttime. During the day Clock had warned several citizens of the contemplated crime,--among others Schaeffer, a member of the firm which owned the store. He told Schaeffer that defendant had a key to the store, and would enter it that night. He did not, however, tell him where or how the key had been obtained. The persons so warned were requested to be on guard and assist in defendant's arrest after the offense was completed. This plan was carried out. Schaeffer and the others watched. Clock and defendant came upon the scene about midnight. Defendant opened the door and entered the store, Clock following. As they came out with the property taken, defendant was arrested.

One who has committed a criminal act is not entitled to be shielded from its consequences merely because he was induced to do so by another. If there is anything in the defense here, it must be because the entry was assented to by Schaeffer. But the evidence tends strongly to show that Schaeffer, though not objecting, did not personally assent. One who knows of a crime contemplated against him may remain silent and permit matters to go on, for the purpose of apprehending the criminal, without being held to have assented to the act. People v. Liphardt, 105 Mich 80 (62 N.W. 1022); State v. Adams, 115 N.C. 775 (20 S.E. 722); State v. Sneff, 22 Neb. 481 (35 N.W. 219); Thompson v. State, 18 Ind. 386; State v. Jansen, 22 Kan. 498. The question of the owner's personal assent was left to the jury, and, we think, under instructions that fully and accurately stated the law. But certain instructions were asked by defendant and refused by the court, the thought of which was to predicate the assent of the owner upon the acts of the clerk, Reynolds. The evidence does not show on the part of the members of the firm any knowledge of Reynolds' conduct. Of course, if the clerk, with criminal intent, aided in any way in the entry of this building, he would be a party to the crime. But that is not what is claimed by defendant. He contends that if the clerk, though without criminal intent, assented to the entry, such assent...