State v. Gates

• Decision Date: 01 April 1924
• Docket Number: No. 35503.,35503.
• Citation: 197 N.W. 908,197 Iowa 777
• Parties: STATE v. GATES.
• Court: Iowa Supreme Court

197 Iowa 777

197 N.W. 908

STATE

v.GATES.

No. 35503.

Supreme Court of Iowa.

April 1, 1924.

Appeal from District Court, Pottawattamie County; 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, all of Omaha, Neb., for appellant.

Ben J. Gibson, Atty. Gen., Maxwell A. O'Brien, Asst. Atty. Gen., and Frank E. Northrop, Co. Atty., of Council Bluffs, for the State.

DE GRAFF, J.

[1] 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, § 4776), and is legally sufficient.

[2] 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. Clark & Marshall Law of Crimes, vol. II, § 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.

[3][4] 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 of ice cream and candy. A trapdoor 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 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 around 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 the car. He testified:

“I saw a man run out of the front door of the Broadway Candy Store (the building in question) and proceed very rapidly north. I saw smoke issuing from the building directly after this man had run up the street. I was standing in front of the Majestic Theater about 120 feet from the candy store. When I got close to the doorway of the store the defendant came out by the front door, which he locked. The smoke was rolling out after him. and just as he started to go round the corner I grabbed him. I asked him whether he was the cause of the fire, and he replied that he knew nothing about it. He broke away from me and proceeded further south, where I grabbed him again.”

Another police officer corroborated the statements of...