State v. Neff

• Decision Date: 02 April 1940
• Docket Number: 44865.
• Citation: 291 N.W. 415,228 Iowa 383
• Parties: STATE v. NEFF.
• Court: Iowa Supreme Court

291 N.W. 415

228 Iowa 383

STATE v. NEFF.

No. 44865.

Supreme Court of Iowa.

April 2, 1940

Appeal from District Court, Howard County; T. H. Goheen, Judge.

An indictment was returned against defendant charging him with the crime of arson. The jury returned a verdict of guilty. Defendant appealed.

Reversed.

G. P Linville, of Cedar Rapids, and W. L. Barker, of Cresco, for appellant.

Fred D. Everett, Atty. Gen., of Iowa, Jens Grothe, Asst. Atty Gen., of Iowa, and George F. Mikesh, Co. Atty., of Cresco for appellee.

STIGER, Justice.

On January 13, 1938, defendant was operating a furniture store in Cresco, Iowa, in a building owed by A. L. Peterson. About 3 o'clock on the morning of January 14, 1938, the building in which he conducted the business was burned. All of the evidence introduced by the state was circumstantial.

We are first confronted with defendant's challenge to Instruction No. 13 which reads:

" Evidence has been introduced by the State regarding certain tracks or footprints near the scene of the fire, and claimed by the State to be pointing toward and away from the store building. The State claims that these tracks or footprints were made by the defendant, but the defendant denies that they were made by him at any time.

You are instructed that you should consider all the evidence in regard to footprints, and all the other facts and circumstances as shown by the evidence bearing on that question, and determine from it all whether the footprints were made by the defendant, bearing in mind that the burden is on the State to satisfy you by the evidence and beyond a reasonable doubt that such footprints were made by the defendant at the time claimed by the State."

Appellant objects to the italicized portion of the instruction because there is no evidence of footprints pointing toward the store building. In passing on the merits of this assignment of error it will be necessary to refer to some of the evidence. Don Powers, a night watchman, testified that after he discovered the fire in the basement of the building and was driving to the telephone office, which is located west of the Peterson building, to notify the telephone operator to turn in a fire alarm, he noticed a car parked in front of the Peterson building. Upon returning to the fire from the telephone office he observed that the parked car was gone. Sometime later he went to the front of the Peterson building and noticed shoe tracks in the snow leading from the building to the place where the car had been parked. The witness thought the tracks were possibly made by a number 9 or number 10 shoe. Sheriff Pederson testified: " I was called to the front end of the building and made observation of some tracks leading from the front of the building across the sidewalk and down through the cement approach to the curb. There were a number of these tracks." A fireman gave like testimony about the footprints. All of the state's witnesses who testified about the shoe tracks stated that they observed no footprints pointing to or leading toward the building from the curb. The sheriff made a drawing, Exhibit 5, of the heel prints in the snow. He stated:

" I had a conversation with the defendant the night after the fire. The defendant had on a Florsheim shoe and rubbers on the shoes. Exhibit 5, subject to imperfection of the lines, appears to be similar to the shoe he had on.

I don't claim that Exhibit 5 is an exact simulation or reproduction of the heel print I saw in the snow."

The evidence relative to the footprints must be considered with the testimony of the state's star witness, Samuel Napolitina. This witness was an employee of defendant. He gave damaging testimony against the defendant.

Napolitina testified that defendant left the store about 11:30 on the morning of January 13, stating that he was going to Minneapolis. His duties at the store did not require him to remain there after 6 P. M. He further testified:

" I went into the Neff store about midnight, turned on the radio and lay on the sofa. This was west of the front window. The radio was closer to the door than the davenport. One end of the davenport reached the west wall. Do not know how long I remained there. I turned on the radio and kind of dozed off and went to sleep. I woke up and I listened and I heard the door open, someone had put a key in the door, and I woke up and shut the radio off and laid flat on the davenport. The door opened and I saw Claire Neff enter the store. He walked down the aisle towards the basement. There was an aisle there near the east wall in front of the door. The aisle was made of furniture. He walked north. He had a flashlight in his hand. There was no light in the store. There was a reflection from the streetlight over the back of the curtains. He walked to the back of the store, turned to the left and went downstairs. I unlocked the door and went out. I thought it was around a quarter to 3:00. I don't really know what time it was. I went home. I didn't speak to him when he came in. I was ashamed for him to know I was in the store. I had been in the store nights before and had told him about it. I didn't want to speak to him because I thought he had some business there and I didn't want to interfere with him. I didn't see him set out any fire.

Q. Why did you get up and run out? A. Because I just did.

Q. Well, I suppose that you, in order to cover your tracks, I...