State v. Dolson

• Decision Date: 10 March 1920
• Docket Number: No. 32143.,32143.
• Citation: 188 Iowa 629,176 N.W. 678
• Parties: STATE v. DOLSON.
• Court: Iowa Supreme Court

188 Iowa 629

176 N.W. 678

STATE

v.DOLSON.

No. 32143.

Supreme Court of Iowa.

March 10, 1920.

Appeal from District Court, Pottawattamie County; O. D. Wheeler, Judge.

Appeal from a conviction for breaking and entering into a railroad car. Reversed and remanded.John J. Hess, of Council Bluffs, for appellant.

H. M. Havner, Atty. Gen., F. C. Davidson, Asst. Atty. Gen., and C. E. Swanson, Co. Atty., of Council Bluffs, for the State.

SALINGER, J.

[1] I. To the complaint that the evidence does not sustain the indictment, the state responds that it is doubtful whether the motion for new trial raises that question. We entertain no doubt on that point, and find it to be indubitable that the motion in terms urges that the verdict is contrary to and not supported by the evidence, and is the result of passion and prejudice. An additional contention is that we may not review the sufficiency of the evidence, because there was no motion by defendant for a directed verdict. This position is against the settled rule in this court. We have frequently held that, though by reason of a waiver the case stands as though there had been no motion to direct, yet “this does not preclude complaint that the verdict is contrary to and not supported by the evidence. State v. Bosworth, 170 Iowa, 329, 152 N. W. 581;State v. Asbury, 172 Iowa, 606, 154 N. W. 915, Ann. Cas. 1918A, 856;Hansen v. Hough, 177 Iowa, 93, 158 N. W. 501;Boyd v. Buick Co., 182 Iowa, 306, 165 N. W. 908.

[2] II. The indictment charges defendant with the crime of breaking and entering a railroad car feloniously with intent to commit larceny, in that he with such intent broke and entered into “Soo Line Car No. 27680,” which car was then and there “in the use, possession, and control of the Illinois Central Railroad Company.” It may be granted the citations for the state hold defendant may be convicted, though the car was owned by the “Soo Line,” if the Illinois Central Railroad had possession. But, of course, that does not help decide whether the proof shows such possession. That appellee has the burden on that question is not denied. That such burden may be discharged by circumstantial evidence is true. Has it so been discharged? The state asserts it has been done, because one who “worked for the Illinois Central” sealed the Soo Line car, and because it is shown that the car stood on an Illinois Central track when said sealing was done, it is not claimed that the act of sealing suffices, standing alone. The argument is that the question of possession was for the jury if in addition to said sealing there is evidence that the car stood on an Illinois Central track, when it was sealed. If the sealing makes no jury case unless the car sealed was on a track owned by the Central, it follows that, though there might not be a conviction, even if the ownership of the track was proven as laid, there can be none if such ownership is not shown. The fact that some one who in some capacity worked for the Illinois Central sealed a car standing on a track is no more evidence that the Illinois Central owned said track than evidence of such ownership would be evidence that such sealing was done. In a word, the controlling question at this point is the nature of the evidence of ownership. It is this: Union avenue runs just north of the depot of the Illinois Central Railroad, and the tracks of that railroad occupy that street in large part; three tracks lay on the north side of its freight depot or freighthouse, and the car in question was on the southernmost track or the one nearest to that freighthouse. There is an attempt to buttress this evidence by arguing that--

“There is no evidence to indicate that any other railroad company had any depot or any tracks anywhere near this freighthouse.”

The defendant had no burden to show that the track did not belong to the Illinois Central, and all lack of evidence injures nothing but the case of the state. Its case cannot be strengthened by the failure or weakness of the testimony for the defendant. See Farmers' Bank v. Shaffer, 172 Iowa, 173, 154 N. W. 485. It is immaterial what either defendant or anyone else has failed to show. The question is not whether there was a weakness in proof that the tracks belonged to some one other than the Illinois Central, but is whether the state has shown that they did belong to that corporation.

More persuasive than is the argument...