State v. Fox

• Decision Date: 11 June 1968
• Docket Number: No. 53043,53043
• Citation: 159 N.W.2d 492
• Parties: STATE of Iowa, Appellee, v. William Bud FOX, Appellant.
• Court: Iowa Supreme Court

Page 492

159 N.W.2d 492

STATE of Iowa, Appellee, v. William Bud FOX, Appellant.

No. 53043.

Supreme Court of Iowa.

June 11, 1968.

Garold F. Heslinga, Oskaloosa, for appellant.

Richard C. Turner, Atty. Gen., James R. Martin, Asst. Atty. Gen., and Lake E. Crookham, Mahaska County Atty., for appellee.

STUART, Justice.

A county attorney's information filed July 11, 1967, charged defendant William Bud Fox with the crime of attempting to break and enter the Coffee Cup Cafe in Oskaloosa, Iowa on the morning of July 6, 1967 with intent to commit larceny in violation of section 708.10 of the Iowa Code. Defendant's motion for a directed verdict at the close of State's case was overruled. He rested without introducing any evidence. The jury found defendant guilty as charged. He filed a motion in arrest of judgment which was overruled. Sentence was pronounced.

I. Defendant claims the trial court erred in overruling his motion for directed verdict 'as the State offered no proof of the intention of the defendant to commit larceny, or sufficient proof upon which the jury could base a presumptiom of intent to commit larceny'. At the trial he took the position that the law does not apply the presumption of an intent to commit a larceny which arises in a breaking and entering case, State v. Teeter, 69 Iowa 717, 717--718, 27 N.W. 485; State v. Worthen, 111 Iowa 267, 271, 82 N.W. 910; State v. Woodruff, 208 Iowa 236, 243, 225 N.W. 254, to the charge of Attempt to break and enter.

There is a language in State v. Woodruff, supra, which appears to support this position. However State v. Allnutt, Iowa, 156 N.W.2d 266, 272, holds there is no distinction between the presumption in an actual breaking and entering and an attempt to break and enter. Defendant acknowledges State v. Allnutt, but now argues there is no substantial evidence here upon which the jury should be allowed to predicate a presumption of intent. He claims it is just as reasonable to presume defendant was drunk and fell through the glass window. We do not agree.

In determining the sufficiency of the evidence to raise a jury question we view it in the light most favorable to the state. State v. Everett, Iowa, 157 N.W.2d 144, 145.

George McFadden, a part-time police officer for the City of Oskaloosa, while working in his official capacity on the morning of July 6, 1967, parked his car on First Avenue to observe the activity in 'tavern country'. At about one o'clock a.m. he saw defendant, whom he knew and recognized, leave the Union Tavern, angle across the street towards the Coffee Cup and disappear into the east end of the alley back of the cafe. In a couple of minutes, defendant reappeared and McFadden lost sight of him in the activity around the taverns. About twenty or thirty minutes later he again saw defendant: 'He was alone and he again went down in front of the Coffee Cup Cafe to the north side of it, turned and came back to the alley again and headed back into the alley. I started my car and turned back west on First Avenue and went to the alley intersection that runs north and south and I turned into the alley north. * * *

'As I went up the alley I had my lights off and when I came to the intersection of the north-south and east-west alley, I looked up and down the alley and didn't observe him no place. I continued north and came around the block north of the Salvation Army, turned back south on B Avenue and turned into the east-west alley along side of the Coffee Cup.'

McFadden proceeded down the alley to where the rear door of the cafe opens onto the alley. There he 'observed Mr. Fox * * * at the back door of the * * * cafe * * * and * * * his arm was inside of the door, and he pulled it out and started to run * * *'.

Defendant ran a short distance, fell over a tar bucket, was apprehended by the officer and taken to the police station. Defendant's left hand was lacerated and bleeding. When arrested he had no tools or accessories in his possession.

Officer McFadden returned to the scene a short time later with Officer McGrew and found the screen door torn adjacent to the broken glass pane in the rear door of the cafe. A mop handle was found in the alley which had pry marks on it and screen wire and glass imbedded in it. They found a long butcher knife lying on the floor inside the door.

Mr. Phillip Ray, the operator of the Coffee Cup Cafe testified that when he closed July 1, 1967 for a ten day vacation, the rear screen door was not torn and the glass in the inner door was not broken. He used two large butcher knives to secure the door on the inside inserting them behind the casing above and below the lock. Utensils, merchandise and cash were left in the restaurant.

Under Iowa authorites defendant's intent to steal may be inferred from his breaking and entering a building which contains things of value.

'Some presumptions are to be indulged in against one who enters a dwelling unbidden, at a late hour of night, else the burglar caught without booty might escape the penalties of the law. * * * The usual object is theft, and this is the inference ordinarily to be drawn, in the absence of explanation, from breaking and entering at night, accompanied by flight upon discovery, even though nothing has been taken.' State v. Worthen, 111 Iowa 267, 269, 82 N.W. 910, 911, and citations.

'It is argued that the act of breaking and entering the building, standing alone, evidences no intent beyond the act itself, and the question whether the act was done with the specific intent charged must be determined alone from the other facts and circumstances of the transaction. But this view is not sound.' State v. Teeter, 69 Iowa 717, 718, 27 N.W. 485, 486.

'So, if one was to be found in the night-time in the act of breaking into a building in which money or property of great value was deposited, his act would give very strong evidence indeed of the motive or purpose which prompted it. And a case would hardly arise, we think, in which it would not be proper to consider the fact that the building was broken and entered in determining the intent with which the party acted in doing the act.' 69 Iowa at 719, 27 N.W. at 486.

'It is quite apparent that the law as announced in the foregoing authorities is sound. To hold otherwise would permit one who breaks and enters a home in the dead hours of the night, but whose presence is detected before he has had time to do anything to indicate his intent, and who flees from the house upon his detection, to go unpunished. The general rule is that in the absence of explanation, the jury may infer from the fact of his breaking and entering that his intent was to commit larceny. In ascertaining the intent, the jury may take into consideration all the other facts and circumstances disclosed by the evidence, and bearing upon that question.' State v. Woodruff, 208 Iowa 236, 243, 225 N.W. 254, 256.

We believe the circumstances under which defendant was apprehended together with the facts disclosed on subsequent investigation and the testimony of the owner were sufficient to raise a jury question on the charge of attempting to break and enter with intent to commit larceny.

II. Defendant contends the State proved a crime other than the one charged and failed to prove the elements of Attempting to break and enter with the intent to commit larceny. Fox claims the evidence he was seen with his arm inside the back door of the cafe proved breaking and entering rather than attempting to break and enter. Section 708.10 of the Iowa Code. State v. Sorenson, 157 Iowa 534, 138 N.W. 411; State v. Murray, 222 Iowa 925, 270 N.W. 355. He claims failure or lack of success is an essential element of the crime of 'attempt' and cites foreign and secondary authority for that proposition. Taylor v. State, 96...