State v. Berger

• Decision Date: 29 October 1903
• Citation: 96 N.W. 1094,121 Iowa 581
• Parties: THE STATE OF IOWA, Appellee, v. ED. BERGER, Appellant
• Court: Iowa Supreme Court

96 N.W. 1094

121 Iowa 581

THE STATE OF IOWA, Appellee, v. ED. BERGER, Appellant

Supreme Court of Iowa, Des Moines

October 29, 1903

Appeal from Cerro Gordo District Court.--HON. J. F. CLYDE, Judge.

REVERSED.

Robinson & Koch and Struble & Stiger for appellant.

C. W Mullan, Attorney General, and C. A. Van Vleck, Assistant Attorney General, for the State.

OPINION

THE opinion states the case.--Reversed.

WEAVER J.

The indictment in the case charges that on the 5th day of February, 1902, in Cerro Gordo county, the defendant Berger and one A. J. Lee feloniously broke and entered a certain freight car belonging to the Chicago, Milwaukee & St. Paul Railway Company. Berger was awarded a separate trial, and being convicted, appeals. There was no evidence tending to show that appellant himself actually broke or entered the car. The theory of the state is that appellant stood watch or guard upon or near the railway track while two other persons broke the seal, opened the door, and entered the car, at which point in the transaction they were interrupted by a detective in the employ of the company, and, after a struggle with him, all escaped under cover of the darkness; no arrests being made until some hours later. This theory is not without support in the evidence; the detective testifying that he recognized appellant as the man standing watch outside the car, and another witness claiming to have seen him entering the yard at or about that time. If the only question before us was as to the sufficiency of the evidence to support a finding of appellant's guilty connection with the offense, we should have no serious difficulty in affirming the judgment below. But other features of the record require our consideration.

I. The appellant submitted certain requests for instructions to the jury, among which was the following: "No. 8. You are instructed that there is no evidence in this case showing that the defendant Ed. Berger broke and entered the car referred to in the indictment and the evidence in this case; and unless you find that he was accessory to or aided and abetted one A. J. Lee in breaking and entering said car, then you are instructed that you cannot find the defendant guilty, and you should acquit him." This request was refused by the court, and the following given on its own motion. "If you find from the evidence, and beyond a reasonable doubt, that at the time and place named in the indictment the witness A. J. Lee, or any other person or persons, unlawfully broke and entered the car in question, and that said car was then under the charge and control of the Chicago, Milwaukee & St. Paul Railway Company, and was sealed, and contained goods and merchandise for transportation, and that the defendant Berger aided and abetted such other person or persons in the acts just named herein, then the defendant is guilty as charged in the indictment, and you should so find." It is urged by the appellant that, having been jointly indicted with Lee for the commission of the alleged offense, he cannot be convicted of aiding and abetting "any other person or persons" not named in the indictment, and that the instruction given is therefore erroneous. Our state abolishes the distinction formerly made between principals and accessories in the commission of crime. Code, section 5299. Under this statute, it had been held that, where the indictment charges a defendant with having committed the overt criminal act, he may be convicted upon proof that his only connection with the offense was that of an aider or a bettor. State v. Hessian, 58 Iowa 68, 12 N.W. 77; State v. Pugsley, 75 Iowa 742, 38 N.W. 498; State v. Munchrath, 78 Iowa 268, 43 N.W. 211. And two or more persons may be jointly indicted for a criminal act which is of such nature that it can be actually committed by but one person. State v. Comstock, 46 Iowa 265. Persons implicated in the commission of a crime may be indicted jointly or severally, and failure to establish the guilt of one of the accused persons does not operate to discharge the others. The appellant in this case is charged with breaking and entering the car, and that fact is sufficiently established, under the authorities cited, if it be shown that he assisted in the act by standing watch while his accomplices or confederates effected the entrance.

Now does the fact that he is jointly indicted with Lee make it incumbent upon the state to prove the participation of Lee in the criminal act, in order to convict appellant? We think not. His guilt is not necessarily dependent upon the guilt of Lee. The state's case tends to show that appellant, with Lee and a third person, who is unidentified, was engaged in the criminal enterprise. It would seem to be a necessary conclusion from our statute and our decisions thereunder that either of the two defendants who are jointly indicted may be convicted upon proof that he himself did the unlawful breaking and entering, or that he aided or abetted his co-defendant in such act, or that, with or without his co-defendant, he aided or abetted the unidentified third person in such act. If the indictment, by specific allegation, charged the defendant with aiding or abetting Lee in the commission of the offense, it may well be conceded that a conviction could not be had upon the evidence that he aided or abetted some other person. But such is not the case here presented. Both defendants are charged as principals, and we see no reason why the case is not governed by the ordinary rule which permits the conviction of either or both if participation in the crime be established by the evidence. In one sense of the word there is no such thing as a "joint" offense, unless, perhaps, it be something...