State v. Billings, No. 58384

CourtUnited States State Supreme Court of Iowa
Writing for the CourtMcCORMICK; All Justices concur except MOORE; MOORE
Citation242 N.W.2d 726
PartiesSTATE of Iowa, Appellee, v. Jerry Lee BILLINGS, Appellant.
Docket NumberNo. 58384
Decision Date19 May 1976

Page 726

242 N.W.2d 726
STATE of Iowa, Appellee,
v.
Jerry Lee BILLINGS, Appellant.
No. 58384.
Supreme Court of Iowa.
May 19, 1976.

Page 727

Dale A. Johnson, Fort Dodge, for appellant.

Richard C. Turner, Atty. Gen., James Robbins and Thomas Mann, Jr., Asst. Attys.

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Gen., and William J. Thatcher, County Atty., for appellee.

Considered en banc.

McCORMICK, Justice.

Defendant appeals his conviction and sentence for burglary without aggravation in violation § 708.3, The Code. He contends the trial court erred (1) in overruling his pretrial motion to suppress evidence, (2) in allowing a witness to express an opinion on an issue of law, (3) in providing the jury an incorrect definition of nighttime, and (4) in refusing to instruct on breaking and entering as a lesser included offense. We reverse and remand because we find merit in his third and fourth contentions.

The charge was based on the alleged burglary of the Kipton Prendergast farm home in Webster County in the evening of January 29, 1975. The State produced sufficient evidence to send the case to the jury against defendant.

Prendergast testified he left home to drive to Fort Dodge at about 6:00 p.m. He locked the doors of the home. He said the sun had set and it was dusk but not dark. He did not remember whether he used his automobile headlights while driving to the city. When he returned home about 9:00 p.m. he found the front door open and his stereo equipment and TV missing. He reported the theft to the Webster County sheriff's office and provided that office with the serial numbers of his equipment.

Michael Bradwell, an alleged accomplice of defendant, testified he and defendant drove to the Prendergast home that evening for the purpose of breaking in to steal Prendergast's stereo equipment. He said Prendergast passed them on his way to Fort Dodge. He said they forced the front door open, took the equipment, and put it in defendant's automobile. He estimated the time of the theft as 7:30 or 8:00 p.m. He said they were able to see the equipment without turning lights on in the house. Although the yard light was on, he said he would have been able to see well enough outside without it to recognize a person with whom he was acquainted. Bradwell testified they drove to Des Moines where they planned to sell the equipment to a friend of his. He called his friend from the downtown Holiday Inn in Des Moines. They were stopped near there by police who though they had seen defendant drinking a can of beer. When the police inquired about the stereo equipment in the car, defendant said it was his. With defendant's help they recorded the serial numbers of the equipment. Then the police said Bradwell and defendant could go. Bradwell said he and defendant later sold the equipment to his friend for $350 and split the proceeds.

Ned Osborn, a Des Moines police officer, testified he and another officer observed defendant and Bradwell in defendant's car at about 10:00 p.m. on the day involved pulling out of the downtown Holiday Inn parking lot. Osborn saw defendant drinking from a can the officer believed contained beer. He said he directed Morris to follow and stop the car because of the apparent violation of § 123.46, The Code, proscribing consumption of alcoholic beverages on a public highway. When they stopped defendant's car, Osborn checked his driver's license. He also saw some of the stereo equipment in the back seat. Defendant got out of the car. In doing so, according to Osborn, he attempted to hide the beer can under the seat and it spilled. Defendant first denied but then admitted he had the beer. The officer confirmed Bradwell's testimony about subsquent events. He testified defendant gave him permission to search the car, including the trunk. He also testified he warned defendant about the beer violation but did not then charge him with that or any other offense.

Through the testimony of other witnesses, the State showed the Des Moines police contacted the Webster County sheriff's office the next morning and inquired whether that office had received a report regarding stolen stereo equipment. The sheriff's office sent the serial numbers of the Prendergast equipment to the Des Moines police, and it was determined the numbers matched those recorded by officer Osborn. The equipment was later recovered, and

Page 729

defendant and Bradwell were charged with burglary.

Defendant now appeals his subsequent conviction and sentence.

I. The motion to suppress. Defendant moved before trial to suppress evidence of the search of his automobile in Des Moines. After hearing, the trial court overruled the motion, and defendant assigns this ruling as error.

Under principles explained in State v. Cooley, 229 N.W.2d 755, 760 (Iowa 1975), the officers were justified in making an investigatory stop of defendant's vehicle because they had specific and articulable cause to believe defendant was consuming beer on a public highway in violation of § 123.46, The Code. Having lawfully stopped the vehicle, they were in a place they had a right to be when they observed the stereo equipment in plain view in the back seat. The ensuing search was with defendant's consent, and its fruits were admissible. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Knutson, 234 N.W.2d 105, 107 (Iowa 1975).

The trial court did not err in overruling defendant's motion to suppress.

II. The evidentiary ruling. During the course of direct examination, the alleged accomplice Bradwell estimated the time of the offense as 7:30 or 8:00 p.m. The prosecutor then asked, 'And it was night at 7:30 or 8:00 on a winter night, is--?' Defense counsel objected that the definition of night is a legal one and the witness was not shown to know it. The court overruled the objection, and Bradwell answered, 'Yes, it was night'.

Proof the offense occurred 'in the nighttime' is an element of burglary. § 708.1, The Code; State v. Osborn, 200 N.W.2d 798, 807 (Iowa 1972). The term has a definite legal meaning as an element of burglary, explained in Osborn and discussed further in Division III Infra. In view of the specialized legal meaning of the term as used in the definition of burglary, Bradwell was called upon to express an opinion on a question of mixed law and fact. The subject matter was inappropriate in this context for opinion testimony. Grismore v. Consolidated Products Co., 232 Iowa 328, 361, 5 N.W.2d 646, 663 (1942); see State v. Oppedal, 232 N.W.2d 517, 524 (Iowa 1975); State v. Johnson, 224 N.W.2d 617, 622 (Iowa 1974); Hegtvedt v. Prybil, 223 N.W.2d 186, 190 (Iowa 1974).

The State argues defendant's objection to the question was not sufficient to alert the trial court to his present theory that the question called for Bradwell to express an opinion on a subject not proper for opinion testimony because involving an issue of law. Because this case is reversed and remanded on defendant's remaining two assignments of error, we do not reach that issue. We assume the situation will not recur on retrial.

III. The trial court's definition of nighttime. Over defense counsel's timely and adequate exception, the trial court instructed the jury that 'nighttime', as an element in a burglary charge, 'is defined as the period between sunset and sunrise'. Defendant assigns the court's overruling of his exception as error.

In State v. Osborn, supra, at 807, we held nighttime in a charge of burglary under § 708.1, The Code, is, as it was at common law, a period between sunset and sunrise during which there is not daylight enough by which to discern a man's face. Authorities in support of this definition are listed in the majority and dissenting opinions in Osborn.

Recognizing that the definition given by the trial court was broader, the State urges us to abandon the common-law definition and adopt the one given by the trial court. We decline to do so. We believe the legislature intended the term to have its common-law meaning in § 708.1. At common law, the circumstance of aggravation signified by the 'nighttime' factor was not sunset but the concealment afforded by darkness, and the common-law definition gives effect to that distinction. Bowser v. State, 136 Md. 342, 110 A. 854 (1920).

Page 730

A question of fact for the jury existed regarding whether the State proved the 'nighttime' element of the offense under its proper definition.

The trial court's erroneous definition of nighttime was reversible error.

IV. The lesser included offense issue. Despite timely and adequate objection by the defense, the trial court refused to submit breaking and entering a dwelling house under § 708.8 as a lesser included offense for jury consideration. Defendant assigns this refusal as error.

Authority for submission of lesser offenses is found in two Code sections. The first is § 785.5 which provides:

'Upon an indictment for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the offense, if punishable by indictment.'

The second is § 785.6 which provides:

'In all other cases, the defendant may be found guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment.'

These provisions have been part of the Code since 1851.

Burglary, the offense charged here, is defined in § 708.1, The Code, as follows:

'If any person break and enter any dwelling house in the nighttime, with intent to commit any public offense; or, after having entered with such intent, break any such dwelling house in the nighttime, he shall be guilty of burglary, * * *.'

Breaking and entering a dwelling house, the offense alleged by defendant to be a lesser included offense of burglary, is provided for in § 708.8, The Code, as follows:

'If any person, with intent to commit any public offense, in the...

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7 practice notes
  • State v. Metcalf, No. 59871
    • United States
    • United States State Supreme Court of Iowa
    • 21 Diciembre 1977
    ...of the greater offense and there is a factual basis in the record for submitting the case to the jury. I agree. State v. Billings, Iowa, 242 N.W.2d 726. Thus defendant was only entitled to the simple possession instruction in addition to intent with delivery for profit under the facts of th......
  • State v. Ogg, No. 58588
    • United States
    • United States State Supreme Court of Iowa
    • 30 Junio 1976
    ...may not state, 'Defendant was, in my opinion, negligent'--since the word 'negligent' has a special legal meaning. See State v. Billings, 242 N.W.2d 726 (Iowa). Such testimony is improper for two reasons. First, the witness' understanding of the word 'negligent' may not be the same as the le......
  • State v. Redmon, No. 58546
    • United States
    • United States State Supreme Court of Iowa
    • 30 Agosto 1976
    ...offense the commission Page 796 of which is necessarily included in that with which he is charged in the indictment." State v. Billings, 242 N.W.2d 726, 730 (Iowa The following statutes which are specifically referred to in the information provide: '708.1 Definition--punishment. If any pers......
  • State v. Furnald, No. 60003
    • United States
    • United States State Supreme Court of Iowa
    • 22 Marzo 1978
    ...in that with which he is charged in the indictment." See State v. Redmon, 244 N.W.2d 792, 795-796 (Iowa 1976); State v. Billings, 242 N.W.2d 726, 730 (Iowa 1976). The gist of the above two sections now is included in rule 21, Rules of Criminal Procedure. See also § 701.9 (merger of lesser i......
  • Request a trial to view additional results
7 cases
  • State v. Metcalf, No. 59871
    • United States
    • United States State Supreme Court of Iowa
    • 21 Diciembre 1977
    ...of the greater offense and there is a factual basis in the record for submitting the case to the jury. I agree. State v. Billings, Iowa, 242 N.W.2d 726. Thus defendant was only entitled to the simple possession instruction in addition to intent with delivery for profit under the facts of th......
  • State v. Ogg, No. 58588
    • United States
    • United States State Supreme Court of Iowa
    • 30 Junio 1976
    ...may not state, 'Defendant was, in my opinion, negligent'--since the word 'negligent' has a special legal meaning. See State v. Billings, 242 N.W.2d 726 (Iowa). Such testimony is improper for two reasons. First, the witness' understanding of the word 'negligent' may not be the same as the le......
  • State v. Redmon, No. 58546
    • United States
    • United States State Supreme Court of Iowa
    • 30 Agosto 1976
    ...offense the commission Page 796 of which is necessarily included in that with which he is charged in the indictment." State v. Billings, 242 N.W.2d 726, 730 (Iowa The following statutes which are specifically referred to in the information provide: '708.1 Definition--punishment. If any pers......
  • State v. Furnald, No. 60003
    • United States
    • United States State Supreme Court of Iowa
    • 22 Marzo 1978
    ...in that with which he is charged in the indictment." See State v. Redmon, 244 N.W.2d 792, 795-796 (Iowa 1976); State v. Billings, 242 N.W.2d 726, 730 (Iowa 1976). The gist of the above two sections now is included in rule 21, Rules of Criminal Procedure. See also § 701.9 (merger of lesser i......
  • Request a trial to view additional results

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