State v. Ball
| Decision Date | 17 July 1935 |
| Docket Number | 42881. |
| Citation | 262 N.W. 115,220 Iowa 595 |
| Parties | STATE v. BALL. |
| Court | Iowa Supreme Court |
Appeal from District Court, Pottawattamie County; H. J. Mantz Judge.
The defendant Ball was indicted under a charge of breaking and entering. From a verdict of conviction, he appeals.
Affirmed.
Robertson & Robertson, of Council Bluffs, for appellant.
Edward L. O'Connor, Atty. Gen., Walter F. Maley, First Asst. Atty. Gen., and Robert B. Organ, Co. Atty., of Council Bluffs for the State.
The major question discussed on this appeal is as to the sufficiency of the evidence to support the verdict. Under the record made, the jury could have found the following facts:
On the 6th of May, 1934, the defendant, Ball, and two others, named Murray and McKay, went by automobile to Omaha, leaving Des Moines about 9:30 o'clock p. m. They returned from Omaha and reached Avoca about 7:30 p. m. on the next day, May 7. They spent about an hour in the town of Avoca, and between 8:30 and 9 o'clock p. m. they started north on highway No. 7. At the north edge of town and on the west side of said highway stands a building of the state highway commission, which is used for a storage and machine shop. It is about 150 feet west of the highway, which it faces, and on the east side of the building are two large doors and a small one. Across the highway, and practically opposite said building, is a residence occupied by Harry Bailey. He was sitting on his porch and heard a noise at the highway garage which attracted his attention, a hammering on the door. He saw two men at the garage and saw the light go out. This light was over the small door. He called Jack Graham, who was foreman of the highway commission, and saw Jack come to the garage that night. He did not see the defendant around the garage that evening, or anywhere on the road.
Graham testifies that he is foreman of the Iowa state highway commission. He responded to Bailey's call, and he and one Ted Nieman went to the garage. The light on the east side, over the door, was broken. He had locked the garage door when he left about 5:30 in the evening. As he drove to the garage the lights of his car were focused on the door. He saw one man come out and run north across the pasture. Just at that time another man came out and the witness grabbed him and he was turned over to the deputy sheriff, Eckhart, who, in the meantime, had appeared upon the scene. The hasp and padlock on the small door were broken and the staple holding the same was pulled out. He examined the interior of the garage and found one of the state highway commission's ten-gallon cans sitting by the gasoline pump, in the neighborhood of about half full, maybe a little more. The tool drawer of the bench was open. The gasoline pump was located inside the garage. South of this highway commission garage, some 10 or 15 feet away, stood a tractor which belonged to the state. About 40 rods north of the garage, and running west, is a dirt road. The witness Graham had passed this garage about 7 or 8 o'clock in the evening, and it was apparently all closed at that time.
The witness Nieman confirms the statements of the witness Graham, and says that they drove north on highway No. 7 to the dirt road, and turned west. They noticed a car flash on its lights and start up. The car started west, turned the corner north, and they followed for about two miles and got close enough to observe that it bore a 77 county license. It was a Model A Ford. They saw the same car the next day in a garage in the town of Avoca. The man captured at the garage and the one running north were George Murray and Oren McKay. This car bearing the 77 county license number was later found alongside the cemetery. In it was found a blue coat that belonged to the defendant Ball, and the car was empty of gas. The man captured at the garage was George Murray.
The witness Schmidt, an agent for the bureau of investigation of Iowa, interviewed the defendant on the 9th of May, in Des Moines, and questioned him as to his whereabouts on the two or three preceding days. He answered that he was in Des Moines, hauling ashes. He denied that he was in Avoca during that time. He instructed the defendant to go to his home and wait until the witness saw him. Later the witness went to the defendant's home and the defendant was not there, but he found him in Marshalltown the following day. The defendant said that he was living with a woman who was not his wife, and he was afraid of getting in trouble on that account. The defendant was then arrested and turned over to the Pottawattamie county authorities. He told the witness he was trying to get some money to go to Missouri and be married. He denied that he was with McKay and Murray when they broke into this garage, and denied being with them at all. He told the witness he went to Marshalltown in the hope of getting some money to marry this woman that he was living with.
Perry, the sheriff of Pottawattamie county, testifies that he had an interview with the defendant after his arrest, and defendant said that when they came to this highway garage in Avoca he let those two men out of the car. They were short of gasoline. He said he was driving the car at that time. He let those two men out with the understanding that they would go over to the tractor and get some gasoline. He then drove north on No. 7 and turned and drove west on the dirt road " to wait for those fellows to get the gasoline." When he saw the car drive into the garage, with the lights on, he knew there was something wrong at the garage. He further said that when he pulled his car onto the dirt road he was to wait there for those two men to come with the gasoline. The witness further said that he (defendant) said to McKay and Murray when they went to get out of the car and go over to this tractor to get some gas to get home on, that he (Ball) would not have anything to do with that, that he had just got out of trouble, out of the penitentiary, and he told them that he would not have anything to do with that.
In the county attorney's office in Pottawattamie county the defendant signed a written statement taken down by the stenographer. " He told his own story in his own way in answer to our questions." Defendant had been brought over to the county attorney's office by the deputy sheriff so that they could get a statement from him. The defendant always claimed that he had nothing to do with breaking into the building. In the written statement made by the defendant, he states:
The question is whether, under this set of facts, the defendant was rightfully convicted by the jury.
As heretofore noted, the defendant was charged with breaking and entering this building in the nighttime. Great stress is laid upon the confession made by the defendant wherein he denies any knowledge of the breaking and entering, or any knowledge of any intention on the part of his two associates to break and enter the building; and it is insisted that, because this written confession was introduced by the state, the state is bound thereby, and, being thus bound, its own evidence shows that the defendant could not have been guilty of breaking and entering said building. While it is true that the state introduced this confession in evidence, the contention of the defendant cannot be sustained that the state is bound by the exculpatory statements contained therein. These statements must be considered in the light of the surrounding facts and circumstances, and other statements made by the defendant in such written statement, and when so considered are, of necessity, a question for the jury.
We...
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