State v. Gorman

Decision Date22 June 1923
Docket NumberNo. 35244.,35244.
Citation196 Iowa 237,194 N.W. 225
PartiesSTATE v. GORMAN.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Ringgold County; A. Ray Maxwell, Judge.

Trial on an indictment for the crime of possession of burglar tools. Verdict of guilty, and judgment entered. Defendant appeals. Affirmed.F. F. Wilson and F. C. Lewis, both of Mt. Ayr, for appellant.

Ben J. Gibson, Atty. Gen., Maxwell A. O'Brien, Asst. Atty. Gen., and F. K. Reynard, Co. Atty., and F. F. Fuller, both of Mt. Ayr, for the State.

DE GRAFF, J.

The defendant, M. J. Gorman, was jointly indicted with Tom Harris, J. W. Conroy, and F. R. Davis for the crime of possession of burglar tools. The defendant was tried separately. Harris, whose true name was Ivers, entered a plea of guilty. The record is silent on the disposition of the indictment against the other two. It appears that on the night of November 10, 1921, the defendants came to the town of Mt. Ayr in a Ford. They first went to a hotel to secure rooms, and were informed by the proprietor that the hotel was crowded to capacity, and were referred to the Annex near the depot. Davis had previously registered and stayed at the Annex on the night of October 17 with three other men giving their names as Floyd Peterson, J. Kelly, and A. P. Gorman.

On the day following the arrival of the defendants in Mt, Ayr, they acted as though they were not acquainted with each other. The defendants had in their possession and in the room occupied by them a bag which contained a kit of burglar's tools. In the Ford car were found drills, files, bits and brace, chisels, a jimmy, a key-hole saw, loot bags, and a filled five-gallon can of gasoline. The can had been purchased from a local merchant, and the gasoline at a local filling station.

When these men were arrested, they gave the sheriff fictitious names. The defendant stated that his name was L. P. Neil.” All of these men except Davis said they had stuff in the grip. In addition to the burglar tools, the grip contained revolvers, revolver ammunition, and flash lights. During the incarceration of the defendant in the county jail at Creston, a jail delivery was attempted. By reason of this fact the sheriff told the defendant and other men who were confined with him in that part of the jail that separate cells would be provided. Whereupon the defendant said: “There is no use punishing these boys; they had nothing to do with it.”

It is also shown that during the time the defendant was confined in the county jail a private detective, unknown to be such by the defendant, but personally known to him, occupied his cell with the intent to learn more of the defendant's history.

Defendant made inquiry as to what the officers had found, and he was told by the detective. Thereupon the defendant said that Ivers, alias Harris, and two other men were with him; that they had been together in Omaha and came to Mt. Ayr in the car where they were picked up because they had been tipped off to the sheriff. He further said that they were not far from the job at the time they were arrested. Gorman was identified by a Mrs. Peterson of Sioux Falls, S. D., as a man who had occupied a room in her house with Davis, alias Henderson, and Harris, alias Ivers. Gorman was called “Dad” in South Dakota by his pals, as well as at Mt. Ayr. Without detailing the record further we conclude that the verdict is abundantly supported by the evidence. Certain legal propositions are advanced by appellant which merit brief consideration.

[1] I. It is first contended that the bag containing the burglar tools was seized without search warrant and in violation of constitutional inhibitions. We have recently determined this point adversely to appellant. State v. Tonn (Iowa) 191 N. W. 530.

[2] The defendants were in joint possession and control of the grip containing the burglar tools. It is clearly shown that there was concert of action. In cases of this character it is not necessary that the possession be actual, or that the tools be taken from the person of the defendant. The jury may consider all of the facts and circumstances in predicating an answer on the fact of possession. See State v. Hanley, 133 Iowa, 474, 110 N. W. 914;State v. Kappen, 191 Iowa, 19, 180 N. W. 307.

[3] II. Appellant complains of the overruling of his objection to certain photographs offered by the state to prove that the defendants were the same persons who frequented the room occupied by Gorman in the home of Mrs. Peterson at Sioux Falls, S. D.

It is the claim of the state that these men were acting in concert and for one purpose. It was competent to prove this fact, and consequently evidence of the antecedent relations and associations of these parties within a reasonable time prior to the indictment in this case was...

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