State v. Kappen

• Citation: 180 N.W. 307,191 Iowa 19
• Decision Date: 16 December 1920
• Docket Number: No. 33027.,33027.
• Parties: STATE v. KAPPEN.
• Court: United States State Supreme Court of Iowa

191 Iowa 19

180 N.W. 307

STATE

v.KAPPEN.

No. 33027.

Supreme Court of Iowa.

Dec. 16, 1920.

Appeal from District Court, Story County; E. M. McCall, Judge.

The defendant was convicted of the crime defined by section 4790, Code Supplement, 1913, viz.: of having burglar's tools or implements in his possession with intent to commit the crime of burglary. He appeals. Affirmed.

Salinger, J., dissenting.

J. F. Martin, of Nevada, Iowa, for appellant.

H. M. Havner, Atty. Gen., F. C. Davidson, Asst. Atty. Gen., and Harry Langland, Co. Atty., of Nevada, Iowa, for the State.

EVANS, J.

Upon a search of defendant's residence, made by officers on the night of March 21, 1918, certain burglar's tools were discovered therein, consisting of 12 keys. He was arrested the same evening, and duly indicted.

[1] I. The original indictment described the alleged burglar tools as “12 keys.” Later the county attorney caused the indictment to be amended by adding to this specification the further description, “made from spoons and other implements, the same being tools adapted, designed, and commonly used for committing the crime of burglary.” Defendant complains that proper notice of this proposed amendment was not given, and that the nature of the amendment was such as was not authorized by the statute. The record discloses no lack of proper notice. The nature of the amendment was just such as comes within the contemplation of the statute, which expressly provides for amendment “in the description of any person or thing * * * described in the indictment.” Section 5289, Code Supplement 1913; State v. Kiefer, 183 Iowa, 319, 163 N. W. 698.

[2] II. Defendant moved for a dismissal of the indictment on the ground that he had been in previous jeopardy. A previous trial upon this indictment had been begun by the selection of a jury and the introduction of some evidence, when one of the jurors became sick and unable to serve. The trial court gave the defendant the option to proceed with the trial to 11 jurors, but his counsel took the position that he could not make such waiver of his rights. Thereupon the trial court entered of record a finding that the trial had been interrupted by catastrophe and accident, and discharged the jury on that ground, and ordered the impaneling of a new jury. The proceeding seems to have been in strict accord with the statute, and defendant's motion was properly overruled.

III. Langland testified as a witness upon the trial. He was not a witness before the grand jury. Objections to him as a witness were made upon that ground, and because no proper notice of his testimony had been served. The grounds thus urged are not sustained by the record. Proper notice of the proposed evidence of this witness was served.

[3] IV. Some complaint is directed to the instructions given by the trial court. But it does not appear from the record that any exceptions were taken to any instruction within the time provided by statute.

A police officer was examined as a witness by the state, and his attention directed to the keys described in the indictment. He was asked to state what they could be used for. This question was objected to as leading, and the objection was overruled. The witness testified in substance that they were adapted to burglarious use in the opening of locks. Complaint is now made of this ruling. The ground of objection to the question was that it was leading. It was not leading. No other objection was made.

V. The more important question in the case pertains to the sufficiency of the evidence to support the conviction. The general grounds of objection to the sufficiency of the evidence are: (1) That the state did not prove that the burglar tools were in the possession of the defendant; (2) that it did not prove that such possession was guilty or felonious.

[4] The emphasis of the first ground of objection is that the keys were not found upon the person of the defendant. It was undoubtedly incumbent upon the state to show as the first element of the crime charged that the defendant was in possession in a legal sense of such tools. The statute does not require that they be found upon his person. In a legal sense a person may be in possession of personal property without having the same upon his person. It is sufficient that it be within his dominion and subject to his control. This is the nature of the possession exercised by owners over the great body of personal property.

[5] It is undoubtedly true also that the state must show, as the second element of the crime, that the possession was guilty and felonious; that it to say, that it was with intent to commit the crime of burglary.

[6] Upon the trial the state introduced evidence tending to show defendant's possession of the burglarious tools in question. It thereupon rested without introducing independent evidence of the burglarious intent of the defendant. The reason for this course will hereinafter appear. We proceed then to consider the first question: Did the state introduce sufficient evidence to show possession in a legal sense, disregarding for the moment the question of the guilty or felonious character of the possession? As already stated, the search and discovery by officers was made on March 21, 1918. These tools were found in a little house, which was the home of the defendant at the time of their discovery. This house had been rented from the owner's agent by this defendant personally, and the rent therefor paid by him. He and his codefendant Benton had occupied the same for at least two months prior to the time of the search. This house is known in the record as No. 1016 Third street, and was located near the Northwestern depot at Ames. No occupation is disclosed for either of such defendants. They were both living in this house up to and including the date of the search, though this defendant was not present in the house when the search warrant was served, about 10 o'clock at night. At that time Benton was in the house alone. The house thus occupied was a small frame building about 16 feet wide and 18 or 20 feet long. It had three rooms on the first floor and two rooms on the second floor and two rooms in the basement. The basement rooms were separated by a partition wall of hollow tile. The floor of the basement was of cement. The entrance into it was by an inside stairway into its east room. There was no outside stairway. This basement was in actual use by defendant as a place of storage. An inspection of the basement on the night of the search disclosed an interference with the surfaces of the cement floor and of the partition wall. A section of the cement floor had been so cut as to make it removable, and a hole was dug thereunder and the removable section restored to its place. A quantity of meat was found therein. In the partition wall was a disconnected tile. This being removed, a piece of newspaper was disclosed protruding out of the adjoining tile. This proved to be a package comprising 12 keys wrapped in a newspaper. These are the keys which are described in the indictment. They consisted of keys and blanks in miscellaneous forms, and appear to have been made from spoons and knives.

As to the defendant's use of this basement the witness Gretten, ex–sheriff, testified to a conversation with the defendant on the night of his arrest as follows:

“A. I asked him about a hole he had dug in the basement, and he said he had dug a hole to keep his meat in. Q. What else was said? A. There were two rooms in the basement, and he had a big jar of lard, which I found in one room, and in the other was this hole dug in the basement, the cement part had been taken up or a hole dug under there, and then this piece of cement laid back in there. He said he dug that hole to keep his meat in; he called it his ice box. Q. Did he say anything about the other room to the east? A. He said he had been keeping it in there––he had some meat hanging up there––but he said he had to have a cooler place for it.”

Inasmuch therefore as this property was found in the defendant's dwelling actually occupied by him, and found in a part of such dwelling actually used by him, we think this was sufficient prima facie proof of possession in a legal sense. It was in fact and in law within his dominion and control, and was presumptively at least in his possession. This is not saying that his possession was guilty or felonious. That feature will be dealt with in the next paragraph. We only say here that this was sufficient presumptive evidence of defendant's possession to go to the jury. True it was subject to denial or explanation by the defendant. Its credibility and weight could be put to test. But this would not affect its character as prima facie sufficient. And this is the argument that is made against this proof. It is said that some previous tenant of this house may have left the keys there; that Benton may have put them there; that in any event the defendant may have known nothing about them. True enough. The defendant had a right to testify in denial of any knowledge of the presence of the keys in his dwelling. This evidence if believed by the jury would rebut the prima facie evidence of possession. There was no such denial; nor was there any evidence of any kind tending to explain the presence of these tools as not being in the possession of the defendant, though found in his dwelling. We hold therefore that upon the mere question of naked possession whether innocent or guilty in character, the finding of this personal property in the dwelling occupied by the defendant, and in a part thereof actually used by him, is presumptive evidence of his possession.

VI. Proceeding to the second question: Was the naked possession discussed in the foregoing paragraph a guilty one? Before the jury could render a verdict of guilty it must find that such possession of the defendant was with intent on his part to commit the crime of burglary. Was such a finding justified...