State v. Gates
| Decision Date | 01 April 1924 |
| Docket Number | 35503 |
| Citation | 197 N.W. 908,197 Iowa 777 |
| Parties | STATE OF IOWA, Appellee, v. TOM GATES, Appellant |
| Court | Iowa Supreme Court |
Appeal from Pottawattamie District Court.--LESTER L. THOMPSON Judge.
TRIAL on an indictment for arson, resulting in a verdict finding the defendant guilty. Judgment was entered thereon in conformity to law. Defendant appeals.
Affirmed.
Organ & Delitala and Jamieson, O'Sullivan & Southard, for appellant.
Ben J Gibson, Attorney-general, Maxwell A. O'Brien, Assistant Attorney-general, and Frank E. Northrop, County Attorney, for appellee.
DE GRAFF, J.
The defendant was charged with setting fire "to a building known and described as No. 555 West Broadway in the city of Council Bluffs, Iowa, the same being a dwelling house, then and there inhabited by * * * by the burning whereof the said building was burned in the nighttime," etc. The indictment charged a crime within the definition of the statute (Code Section 4776), and is legally sufficient.
However, it is contended by appellant that there exists a fatal variance between the proof offered by the State and the allegations of the indictment. This proposition is bottomed on the fact, as disclosed by the evidence, that the building in question was in part occupied by the defendant and in part by others: in other words, that the first floor, occupied by the defendant, was distinct and separate from the inhabited portion on the second floor of said building. This position is untenable. The indictment named a specifically described building. The evidence discloses that it was a two-story brick, with a basement; but the entire structure or building was under one roof, and was within the same four walls. The word "building," within its ordinary and legal signification, includes the basement, as well as the garret, and it necessarily includes all space within the walls from basement to garret. See State v. Brower, 127 Iowa 687, 104 N.W. 284; State v. Gibson, 97 Iowa 416, 66 N.W. 742. Statutory arson is essentially different from arson at common law. Under the common law definition, the building must be the dwelling house of another, and occupancy, not ownership, is the test. Under the common law, however, if a shop or store is also occupied as a dwelling, it is within the definition of arson. 2 Clark & Marshall on the Law of Crimes, Section 411.
The fact that the instant defendant leased and occupied the main floor of the building named in the indictment is but an evidential fact, and a mere incident in the case. It is not a controlling consideration in determining the sufficiency of the indictment, nor does his occupancy with others create a variance between proof and the allegations of the indictment.
It is also urged that the evidence is insufficient to sustain the verdict. True, this case rests on circumstantial evidence, but the corpus delicti may be so proved. State v. Millmeier, 102 Iowa 692, 72 N.W. 275. Some of the material facts are in sharp conflict, but the credibility of the witnesses and the weight of the testimony creating the conflict were matters for the consideration of the jury. Clearly, a jury question was presented, and their finding has ample support in the record.
Briefly stated, the evidence on behalf of the State discloses, and the jury could so find, that the defendant used the main floor of the building in question for the manufacture office cream and candy. A trap door led to the basement, and was the only opening from the inside of the building. There was another basement entrance from the outside through double iron doors, which were kept locked, and the janitor of the building carried the key. Several families, including those named in the indictment, occupied the second floor, and a wooden stairway gave access thereto. On the evening in question, about midnight, the defendant gave his clerk, named Fontis, some currency, apparently for safe-keeping, and as it was about closing time, Fontis started to go to the basement to shut off the gas heater, as was his custom. He was told by the defendant not to go down. A little later, Fontis saw the defendant come out of the basement, and upon inquiry as to what he was doing, the defendant replied, "Nothing." When the men were ready to leave the store, Fontis smelled smoke, and asked the defendant where the smoke came from. He replied that there was no smoke. Fontis then left the store, with the intention, as he says, to go across the street for the purpose of calling the police. Defendant left the building through the front door, locked it, and started to go round the corner to his automobile. Police Officer Callaghan, having previously noticed the smoke, walked toward the building and grabbed the defendant as he was going toward his car. He testified:
Another police officer corroborates the statements of Callaghan. The fire department had been notified by one of the officers before the defendant...
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