State v. Cook

• Decision Date: 12 March 1920
• Docket Number: No. 33332.,33332.
• Citation: 188 Iowa 655,176 N.W. 674
• Parties: STATE v. COOK.
• Court: Iowa Supreme Court

188 Iowa 655

176 N.W. 674

STATE

v.COOK.

No. 33332.

Supreme Court of Iowa.

March 12, 1920.

Appeal from District Court, Monroe County; 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, of Albia, for appellant.

H. M. Havner, Atty. Gen., and C. W. Lyon, Asst. Atty. Gen., for the State.

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, who 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. Some time 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 flash light at or near the point where the screen was hooked to the doorpost. 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 later the sheriff arrested defendant in Kansas City. As a witness he says that, having 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 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 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 some one'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 some one 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.

[1][2] 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 is not complete.” In the same opinion it is further said:

“The law does not imply the intent in cases of the kind, from 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 other than direct evidence, but it cannot be inferred from the mere attempt to break and enter.

[3] 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 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 some one'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 of 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...