State v. Cook

• Decision Date: 12 March 1920
• Docket Number: 33332
• Citation: 176 N.W. 674,188 Iowa 655
• Parties: STATE OF IOWA, Appellee, v. MAJOR COOK, Appellant
• Court: Iowa Supreme Court

176 N.W. 674

188 Iowa 655

STATE OF IOWA, Appellee, v. MAJOR COOK, Appellant

No. 33332

Supreme Court of Iowa, Des Moines

March 12, 1920

Appeal from Monroe District Court.--SENECA CORNELL, Judge.

THE defendant was indicted, tried, and found guilty on charge of attempting to break and enter a dwelling house in the nighttime, with intent to commit larceny, and from this judgment he appeals.

Reversed.

Price & Hickenlooper, for appellant.

H. M Havner, Attorney General, and C. W. Lyon, Assistant Attorney General, for appellee.

WEAVER C. J. EVANS, PRESTON, and SALINGER, JJ., concur.

OPINION

WEAVER, C. J.

The indictment charges that, on August 5, 1919, and in the nighttime, the defendant unlawfully attempted to break and enter a certain dwelling house occupied by one Messer and family, in the city of Albia, with intent to commit larceny. The evidence shows without dispute that the building mentioned was then being used by Messer and wife as a residence, and that they owned and used therein more or less household and kitchen furniture. They also had a small amount of money. The night was warm, and the outside door, opening into the house from the porch, had been left unclosed; but the doorway was filled by a screen, hooked on the inside. Messer and wife were sleeping in an inner room, the open door to which was in direct line with the outside door to the porch entrance. Sometime after midnight, Mrs. Messer, lying upon her bed, and facing the door, was awakened by a flash of light thrown on her face. Waking, she saw a man standing on the porch, just outside the screen, apparently holding a flashlight at or near the point where the screen was hooked to the door post. The woman screamed in fright, and the intruder left. She does not claim to have recognized him, Messer was aroused by the cry of his wife, but not in time to see the person at the door; and the most he says is that he heard a man walk off the porch. Two or three days latter, the sheriff arrested defendant in Kansas City. As a witness, he says that, after he had brought him to Albia, and placed him in jail, defendant expressed a wish to see the county attorney, and "tell the truth." An interview was then had between defendant and the county attorney and the sheriff. What was there said is shown by the testimony of the sheriff only, and is as follows:

"In the conversation, he stated to the county attorney what he did that night. He said, if we would take him down the street, he would show us the house that he attempted to get into,--he was at. He said he was at the M. & St. L. tank, and left and came up the street. After that, we took him where he indicated he wanted to go. We took him in my auto. We afterwards picked up Mr. Shaw. We started from the county attorney's office, and went east on Benton Avenue to Giltner's corner in the city of Albia, Iowa. Mr. Cook said, if we would go down to that water tank down east, and let him come back this way, he could show us the place better than he could to start from this end. Coming back in the street, Mr. Vade Shaw, the county attorney, myself, and the defendant were in the car. I know where the Otto Messer house is now; I did not then. We stopped at the Messer house, and he said, 'That is the house.' He stated that he had tried to get into that house, but that he was scared away by someone's hollo or scream. He said it was about 3:30 o'clock, as nearly as I can recollect. We stopped at the Messer house. I then took him back to the jail."

Mr. Shaw, who accompanied the party in the auto, corroborates the sheriff's version of what occurred, saying:

"I got in the car and drove out east, near Mr. Giltner's place, then turned around, and drove back west on Benton Avenue. While coming back, the defendant had a conversation with Mr. Dearinger in my presence. Yes, I heard the conversation in which he stated that he had tried to enter, and he indicated the houses. Following that, we drove westward along the street. When we got up to the Otto Messer house, he pointed out that house, and said, 'I was at that house, and tried to get in.' I do not know that he said he was in that house. He said he was up to the door, and someone halloed, I believe he said, and scared him away."

The foregoing constitutes the entire evidence in the case, and is quoted literally from the printed record. No evidence was offered on part of the defendant.

I. When the State had rested, the defendant moved for a directed verdict in his favor. The motion was overruled. It should have been sustained. That the evidence is insufficient to support a conviction is easily demonstrable on several grounds.

In the first place, to sustain a conviction, it must be shown, by evidence beyond reasonable doubt, not only that defendant did attempt to break and enter the Messer residence, but that such attempt was made with the intent of committing larceny. No witness testifies to a fact or circumstance tending to show the alleged larcenous intent. A man laying hold of the door of a dwelling in the nighttime may, of course, be a burglar, intent on larceny; he may be a lecher, intent on gratifying a degraded passion; he may be a tramp, intent only on shelter, or place to sleep; or he may be a drunken derelict, incapable of any conscious intent. In either event, he is, of course, a trespasser; but proof of the fact of his approach to the house, or of his attempt to enter, and no more, has no tendency to prove that the trespasser intended to commit larceny. See State v. Bell, 29 Iowa 316. In the cited case, as in the one at bar, the defendant was convicted upon a charge of breaking and entering a dwelling house in the nighttime, with intent to commit larceny. It was there held that the intent to commit larceny "is one essential element, and without it the offense would not be complete." In the same opinion, it is further said:

"The law does not imply the intent in cases of this kind, from the act of breaking and entering, or entering without breaking."

See, also, 9 Corpus Juris 1030. It is true that the intent may be, and usually must be, established by circumstances, rather than by direct evidence; but it cannot be inferred from the mere attempt to break and enter.

In this case, the intent necessary to constitute the offense charged is left by the State to mere conjecture. It does not appear that anything was stolen or carried away from the Messer home, on the occasion in question, or that there was a word said by the accused, or thing done by him at the time, from which direct or necessary inference may be drawn that he intended to take, steal, or carry away any of the goods or property owned or kept in the building. The State bases its claim for an affirmance of the conviction upon an alleged "confession" made by the appellant. The only evidence, and all the evidence, of such confession that we have is in the matter we have already quoted in full, and it contains not a word of confession or admission of the felonious or unlawful intent, without which there can be no conviction under an indictment for an attempt to commit burglary. The sheriff's story of the circumstances under which the admission, if any, was made, is that the party having the defendant in custody drove to the neighborhood of the Messer home; that they stopped at the house, and defendant said, "That is the house;" that he tried to get into that house, but was scared away by someone's "holler" or scream. The witness then adds:

"He said it was about 3:30 o'clock, as near as I can recollect. I then took him back to the jail."

The only other witness, Shaw, testifies to no more than is stated by the sheriff.

Giving the utmost allowable effect to these statements by the defendant, they show nothing except that he tried to get into the house. How he tried, or what he did, if anything, to effect an entrance, is in no manner shown or described; and the unlawful motive or intent, without which there was no crime committed, is not so much as mentioned or hinted at. This defect in the State's case is alone sufficient to necessitate a reversal of the judgment appealed from.

II. The State, as we have said, relies upon the defendant's alleged "confession," to support the...