State v. Furlong, 41442.

• Decision Date: 20 June 1933
• Docket Number: No. 41442.,41442.
• Citation: 216 Iowa 428,249 N.W. 132
• Parties: STATE v. FURLONG et al.
• Court: Iowa Supreme Court

216 Iowa 428

249 N.W. 132

STATE

v.FURLONG et al.

No. 41442.

Supreme Court of Iowa.

June 20, 1933.

Appeal from District Court, Wapello County; C. F. Wennerstrum, Judge.

The three defendants above named were jointly charged by indictment with the crime of possessing burglar tools with intent to commit burglary. The defendant Furlong was tried separately and convicted. Following his trial, the other two defendants were tried jointly. Furlong became a witness in their behalf. The jury rendered a verdict of guilty against both of such defendants, and they have appealed.

Affirmed.Geo. W. Sprenger, of Peoria, Ill., for appellants.

Edward L. O'Connor and Walter F. Maley, both of Des Moines, for the State.

EVANS, Justice.

The defendants were arrested in Wapello county on September 12, 1931. They were strangers, who had come into the city of Ottumwa and were engaged upon the golf grounds in a game of golf at the time of their arrest. They had stopped in Ottumwa briefly the day before, and had gone from there to Boone and from Boone to Des Moines, and from Des Moines to Ottumwa again. They rode together in a large Packard car of one hundred horse power. While they were engaged in their game at the golf grounds, the sheriff and his deputies searched their car and found therein the following contents: “Winchester rifle, wrecking bar, sledge and handle, steel hacksaw, battery and box, two large gun clips, and one small clip, two screw drivers, one punch, two bars of soap, adhesive tape, steel drill, three revolvers, two boxes of shells, two gloves, bottle containing nitroglycerin, two Ohio License plates, two small files, license certificate from Indiana, certificate of title to motor vehicle and sale slip for sledge.” (The firearms were all fully loaded.)

Furlong, as a witness, assumed the ownership of the car and its contents, and absolved the other two men from all responsibility. He testified also, in the same connection, to his own innocence of any wrongful intent. The evidence introduced by the state was quite abundant to sustain a verdict of guilty. The principal controversy developed in the evidence was whether the instruments found in the Packard car were burglar tools. The state used expert evidence upon that question. The substance of the evidence for the state was that each item of the property thus discovered was suitable for use for burglary purposes. Concededly they could each and all be used likewise for legitimate purposes. Because of an alleged error in the admission of one item of testimony, we set forth herein the state's redirect examination of its expert witness, Pettit:

“Q. Well, was there any-I will put it this way, then, from your experience over the last seventeen years state whether or not the tools there-and implements which are on this table are-could be used as a complete set of burglar tools? A. They could be.

Q. And I believe you testified that any one of them might be considered a burglar tool? A. It could be used for that purpose.

Q. It could be used for that purpose? A. Yes, sir.

Q. Mr. Pettit, Mr. Duke asked you about-did you ever see a tool that was made-that had stamped on it burglar tools? A. No, sir.

Q. Do you know of any manufacturer that makes a specialty of making burglar tools? A. No, sir.

Q. And isn't it a fact-or what is the fact, Mr. Pettit, as to whether or not the tools that you ordinarily find or have found in your experience at places where there had been burglaries, as to whether or not those tools could be used also for legitimate purposes? A. They could.

Q. And so burglar tools, in your experience and observation, have you observed whether burglar tools are such tools that they could be used, for instance, for other purposes also? A. They are.

Q. And take, for instance, this sledge here; take a sledge of this kind. Could you drive a fence post with that? A. Yes, sir.

Q. Take this-if a carpenter-if you found that in the possession of a carpenter who was a good, reputable citizen, and who was in the carpenter business, that might not necessarily be considered a burglar tool, would it? A. No, sir.

Q. Or if you found this sledge hammer in the possession of a man who was a farmer or a mechanic or garageman or something like that, that might not necessarily be a burglar tool at all, would it? A. No, sir.

Q. Or take, for instance, this steel saw here, if you found that in a garage, in with the regular garage set of tools, that might not be a burglar tool in itself at all? A. No, sir.

Q. But taking those-supposing now that these guns and these other equipment-supposing that these guns were found in the same car with these other tools and hacksaw and bar and Winchester rifle and radio ‘B’ battery and soap and tape, supposing that there was found in that car a half pint bottle of nitroglycerin, what would you say as to whether or not these guns, from your experience and observation, would be used for burglary purposes?

Mr. Duke: I object to that as an ultimate conclusion that the jury has got to reach, not for him to say.

The Court: He is testifying here as an expert. He may answer. (All of which was duly excepted to at the time.) A. Yes sir, they would be.”

[1] The appellants assign error upon the use of the word “would” above italicized in the last question propounded by the state. It must be conceded, we think, that the court erred in permitting the question to be answered in that form. It was permissible to the state to prove what each instrument could be used for and that it could be used for purposes of burglary. It was proper also to prove that such an instrument was frequently used in cases of burglary. With the exception of the use of the word “would” in the single instance, the examination of the expert witnesses was held to the...