ALBERT, Justice.
The
following facts are satisfactorily shown by the record, and
most of them were testified to by the defendant as a witness:
On the
6th of May, 1934, the defendant, together with one McKay and
one Ball, left Des Moines for Omaha in a Ford touring car.
They reached Omaha about 12:30 or 1 o'clock. They had
been drinking liquor. They started back to Des Moines about
4:30 or 5 o'clock on the 7th of May, and reached Avoca
about 8 or 8:30 p. m. They went to a restaurant there and had
some lunch, and spent all the money they had in the crowd,
and then started north out of Avoca on highway No. 7. At the
edge of town there was a warehouse belonging to the Iowa
State Highway Commission, where materials were kept for
storage. This building faced east on the said highway. Just
across the highway and opposite the front of said building
one Harry Bailey resided. From his front porch to the highway
commission building was about 200 feet.
The
defendant testifies: " Well, as we got out there by that
building, Roy Ball, he noticed that the gasoline was low in
the car, and he says, ‘ I don't believe we have
enough gasoline to go anywhere." ’ Ball was
driving. " Ball says, ‘ There is an old tractor
over there, maybe we can get enough gasoline from that
tractor to get home on." ’ The tractor was about
100 feet the other side of the building. " It was his
suggestion we should go over and get gasoline from the
tractor, so we went over to the tractor and went to examining
the tractor. There was no gasoline in the tractor, so when we
were going back we got up to this state maintenance garage
that had been broken in, and the door of the garage was open
that far (indicating); but I pulled the door open farther and
there was a gasoline pump there, so we took this old can we
took from the car, that is, down to the tractor, and I began
to pump gas from the pump in the shed; so I filled one small
can and handed it to McKay. Then there was a milk can there
that set up on a kind of a bench in the garage, so I took
that down and was pumping gas into the can when this car
drove up, that is, Mr. Nieman and Mr. Graham. My intent when
I went into the building was just for gasoline. That was the
only thing we had in mind was just to get a little gasoline.
Didn't intend to do anything else except get a little
gas, that was all. That was our purpose, to get a little gas
to go home. We got, I should judge, around maybe two or two
and a half gallons there. It was ordinary gas. After I got
some gas in the little can I handed it to McKay; he was
standing by the doorway; he took the can in his hand and took
it out; and then I was filling up the other can, pumping gas
in the other can; I couldn't see how much gas I had in
the other can when Mr. Graham and Mr. Nieman came to the
building; didn't get the can full. I left it in the
building. McKay did not have anything to do with the lock. We
had a searchlight that we took from the
car down with us. We never had any intention of breaking into
any building. Ball stayed in the car. That was all he did.
When we came around the front of the building there were no
lights on the building, and no light was broken by us. I had
plenty of liquor in Avoca and before we got to Avoca. I have
never said I was so drunk I didn't know what I was doing.
I wasn't so drunk but what I know I didn't break the
lock on that maintenance garage door. I wouldn't call
that stealing. Yes, sir, I knew that was stealing that
gasoline and that was committing some sort of crime then.
When I seen the door was open I pulled the door open and
looked in, and there was a gasoline pump, and McKay said,
‘ There is all the gasoline we want,’ so we
started to pump. When I opened that door and went in the
building, gasoline was what we wanted and had the intention
of stealing the gasoline when I pushed the door open. Our
intention was to get some gasoline when we went into that
building. That is what we wanted. I knew that gasoline was
not my property when I continued to operate that pump."
In
addition to this testimony, the principal part of which was
given by the defendant himself, Harry Bailey, who lives just
across the highway, testifies that he could see the lock, or
padlock, on the door from his porch where he was sitting.
" It was fairly dark that evening about 9 o'clock.
The noise I heard was a loud noise, hammering. I saw the
padlock there that evening after it was broken off. I saw
Graham pick it up. The clasp was there, the padlock was on
the hasp. The light over the garage door was busted, but
there was a light from the street corner over there, shining
directly on that garage. I saw two men around there. I saw
them break the garage door, and when they broke it, it made a
noise. After they broke the door they went in the garage. I
called Jack Graham on the telephone. He was the foreman for
the highway commission at Avoca. He came at once in response
to the call. Ted Nieman accompanied him in his car. I went
over to the garage with Nieman and Graham. When I got over to
the garage I saw that Graham and Nieman had one man."
(The witness identified the defendant as the one that Graham
and Nieman had there at that time.) " They afterward
turned him over to Harry Eckhart, deputy sheriff. The other
man ran away. When I heard these two men hammering on the
door the light (over the door) was not burning. When I first
saw them the light was lit. When these two men first came up
to the garage the door was closed. I saw the door open. The
hammering stopped before the door opened."
Graham
testifies that he came by the Highway Commission building
about 8 o'clock and all the doors were closed. He
responded to Bailey's call, and he and Ted Nieman, in his
car, went to the garage. The lights on his car were burning
and focused on the door of the garage, and as he drove there
one man came running out and ran north. He had a can in his
hand. As he went over the fence he dropped the can and ran
across the pasture, running north. " Just about that
time another man came out of the door and I grabbed him. That
man was the defendant. He came running out of the door."
They had a scuffle with him, and finally turned him over to
the deputy sheriff, Eckhart. Graham also testifies...
