State v. Kleier

• Decision Date: 16 May 1949
• Docket Number: 7415
• Citation: 206 P.2d 513,69 Idaho 278
• Parties: STATE v. KLEIER
• Court: Idaho Supreme Court

206 P.2d 513

69 Idaho 278

STATE v. KLEIER

No. 7415

Supreme Court of Idaho

May 16, 1949

Appeal from District Court, Seventh Judicial District, Canyon County; A. O. Sutton, Judge.

Affirmed.

Ariel L. Crowley, Dale Clemons, Boise, for appellant.

It is essential to conviction of burglary, that a burglarious entry be proved. Where there is no proof that the defendant entered the building involved, or cooperated in such entry as accomplice the charge fails, and the conviction must be reversed. Section 17-3401 I. C. A. State v. Bull, 47 Idaho 336, 276 P. 528; State v. Haynes, 66 Idaho 291, 158 P.2d 742; State v. Sullivan, 34 Idaho 68 199 P. 647, 649, 17 A.L.R. 902; State v. Rankin, 56 Idaho 64, 50 P.2d 3; State v. Wilson, 62 Idaho 282 111 P.2d 868; State v. Stenberg, 39 Idaho 575, 227 P. 1050; State v. Burke, 11 Idaho 420, 83 P. 228; State v. Allen, 53 Idaho 603, 26 P.2d 177.

An accused person has a right to representation by counsel at all times during his trial. The taking of an affirmative step, after statutory stay of proceedings by withdrawal of attorneys, such as denial of motion for new trial, with consequent loss of right of appeal therefrom, is a denial of the constitutional rights of due process an representation by counsel, and reversible error. Constitution of Idaho, Article 1, Section 13. Constitution of the United States, 14th Amendment. Section 3-206 I. C. A. 14 Am.Jur. 882; Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed 158, 84 A.L.R. 527.

Robert E. Smylie, Atty. Gen., J. R. Smead, Asst. Atty. Gen., of Boise, and W. W. Wander, Pros. Atty., Nampa, for respondent.

Where the commission of the crime is proven, even possession, alone, shortly thereafter, of the stolen property, unexplained, is sufficient to justify conviction of the accused. State v. Brassfield, 40 Idaho 203, 214, 232 P. 1; State v. Adams, 10 Idaho 591, 597, 79 P. 398; State v. Bogris, 26 Idaho 587, 601, 144 P. 789; State v. Sanford, 8 Idaho 187, 67 P. 492.

An accused must request appointment of counsel, if desired, and request must be denied, to constitute error. Barnes v. Commonwealth, 92 Va. 794, 23 S.E. 784.

It is not necessary that counsel for defendant be present at every detailed stage of the proceedings. Pierce v. State, 52 Ga.App. 10, 182 S.E. 60; State v. Green, 158 Wash. 574, 291 P. 728, 732; Blocker v. State, 92 Fla. 878, 110 So. 547.

Keeton, Justice. Holden, C. J., and Givens, Porter and Taylor, JJ., concur.

OPINION

Keeton, Justice.

On September 22, 1947, an information was filed in the District Court of Canyon County charging appellant with first degree burglary. The information charges "that Raymond Kleier * * * on or about the 20th day of December, 1946, at Nampa, Idaho, did wilfully, unlawfully, feloniously and burglariously enter in the night time that certain building occupied by Nampa Finance Company, located at 223 Thirteenth Avenue South, with the intent then and there to commit larceny therein."

On arraignment, appellant was present in court and represented by his counsel, Laurence N. Smith, and on the 24th day of September, 1947, entered a plea of not guilty.

The case came on for trial December 2, 1947, at which time appellant was represented by Laurence N. Smith and Frank E. Meek; the State was represented by Earl E. Reed, prosecuting attorney.

A jury was impaneled and evidence introduced, and by the jury's verdict, dated December 3, 1947, appellant was found guilty of the crime of burglary in the first degree and was sentenced by the court to serve imprisonment at the State Penitentiary for not more than fifteen years. Appellant on December 8, 1947, made a motion for a new trial, alleging that the verdict was contrary to the evidence in that the evidence failed to show that the defendant had committed burglary in the night time; that the evidence failed to show that the appellant entered any house, room, apartment, tenement, show, warehouse, store, mill, barn, stable, outhouse, or other building, tent, vessel or railroad car in the night time with the intent to commit grand or petit larceny, or any felony, and further that the evidence fails to show that any burglary was committed during the night time. Before the motion for a new trial was decided, the appellant, on December 9, 1947, filed a notice of appeal from the judgment of conviction. On February 10, 1948, the trial court entered an order denying appellant's motion for a new trial. The record discloses that prior to the time the motion for new trial was decided Frank E. Meek and Laurence N. Smith, on February 3, 1948, withdrew as appellant's attorneys, and on the 2nd day of April, 1948, Dale Clemons of Boise entered appearance for appellant.

The evidence shows that on the morning of December 20, 1946, at about six o'clock A.M. a boy named Englehardt observed two men with a wheel cart pulling a safe out of the door of Nampa Finance Company. He was unable to identify either of the persons. He notified the police, and officers went to the place where the boy had seen the men moving the safe.

An investigation was started and search made for the persons whom Englehardt had seen. Investigation by the officers disclosed that the front door of the Nampa Finance Company was broken open.

While the officers were conducting the investigation, a telephone report was made to the police office that somebody had been pounding on a safe near Bowman's gravel pit. Officers drove out to Bowman's gravel pit and in a short time, and while it was still dark, they observed a car with headlights facing them near the gravel pit. The officers drove up beside the car and stopped about four feet from it and turned the spotlight on the other car. Two officers, Jack Machos and Ed Machos, saw the driver's face plainly and recognized him as Raymond Kleier, the appellant. One of the officers noticed what he described as shadows or forms in the back seat of the car. The witness, Jack Machos, got out of the police car with a shotgun. The car that had been seen at the gravel pit was already in motion and as it drove away the officers fired shots at it. The lights on the retreating car were then turned off, and the officers were unable to see it further. The officers identified the license number on the car as 2C-12482; and it was later identified as a Chrysler sedan. At the place where the officers found the car above described, there were two safes with papers strewn around one of them. This safe was later identified as a safe together with contents belonging to Nampa Finance Company. Notes and evidences of loans belonging to the Finance Company, also some money belonging to it, were found there; and in the back of the Chrysler car when later found there was a drawer from the safe, some money and papers which had been in the safe, identified as the property of the Nampa Finance Company.

The officers did not examine the safe and papers strewn about it in detail at the time it was first located, but started in pursuit of the retreating car. This car was shortly located off the road in an orchard and was identified as the one in which appellant had been seen shortly before and as the one at which the officers shot. The rear left door was open and a part of the contents of the safe above mentioned found on the floor in the car. The officers then began a search for the missing occupants of the car. Appellant was discovered on foot hidden in some high weeds along a canal in the vicinity of the Chrysler and also in the vicinity of the gravel pit above referred to, and was identified as the person who was seen in the Chrysler car when the officers first approached it.

The man who had called the police earlier in the morning concerning pounding on the safe was John Ross who testified he saw three men pounding on the safe, shortly before the arrival of the officers. The witness Machos had also seen someone running in the field just before appellant was arrested. The arrest was made about 8:30 in the morning. The record is in dispute as to whether or not the appellant was at the time of his arrest in an intoxicated condition.

One of the safes found near the above mentioned gravel pit was identified as belonging to Nampa Finance Company. The safe was in the Nampa Finance Company's offices the night before; it had been removed during the night, apparently through the door where Englehardt saw the men moving the safe. The door had been broken open and a window broken.

Appellant denied being in the Chrysler car at the gravel pit when the officers approached it and turned the spotlight on the car. Appellant testified that he was in Boise drunk at the time of the alleged burglary and produced witnesses corroborating his statement. Appellant explained his presence in the vicinity of the abandoned safe of the Nampa Finance Company saying he had been taken for a ride by parties that he had met in Boise and put out of the car in the vicinity of the place where he was found.

An examination of the safe belonging to the Nampa Finance Company showed that it had been broken open with force and its contents removed. The safe door had apparently been battered off with some heavy instrument. Appellant denied participating in the charged burglary or knowing anything about it. The state's case consisted largely of circumstantial evidence to connect appellant as a participant in the burglary.

Appellant assigns fourteen errors which we will now discuss.

Appellant's first assignment of error states that the verdict is contrary to the evidence, is not sustained by the evidence for the reason that the state did not prove entry of the premises; or that appellant was in any way connected with an entry or that the entry of the premises, if any occurred, was made during the night...