State v. Perry

• Decision Date: 27 January 1914
• Citation: 165 Iowa 215,145 N.W. 56
• Parties: STATE v. PERRY.
• Court: Iowa Supreme Court

165 Iowa 215

145 N.W. 56

STATE

v.PERRY.

Supreme Court of Iowa.

Jan. 27, 1914.

Appeal from District Court, Pottawattamie County; A. B. Thornell, Judge.

Defendant was indicted, tried, and convicted of the crime of breaking and entering, and, from the judgment imposed, appeals. Affirmed.Thos. Q. Harrison and H. J. Chambers, both of Council Bluffs, for appellant.

Geo. Cosson, Atty. Gen., and John Fletcher, Asst. Atty. Gen., for the State.

DEEMER, J.

The cellar of a dwelling house belonging to J. J. Hughes, in the city of Council Bluffs, was entered on the night of December 17, 1912, and a hunting coat, sweater, a pair of hunting trousers, hunting socks, leather waders, a hunting axe, butcher knife, some beer, and some canned fruit was taken therefrom. On January 4, 1913, a search warrant was sworn out and the house and premises of one McBee, in Council Bluffs, were searched, and in the house and in a completely covered wagon, equipped with a door which was fastened with a padlock, which wagon was owned by the defendant, certain goods, which were identified by witnesses as a part of those stolen from the cellar, were found. The hunting coat, an axe and butcher knife were found in the wagon, and other articles were found at the the McBee house. On January 7, 1913, at about 10:25 p. m., the defendant was arrested in the Union Pacific Transfer waiting room in the city of Council Bluffs, and the following is an account of that arrest: “Defendant was in the southeast corner of the waiting room by himself. There were several other people in the other part, and I walked in and around, and noticed him over in the corner, and from his appearance I thought that it was him. I had been looking for him for several days, that is, three or four. I got close to him, pulled my gun on him, asked him to raise his hands, that he was under arrest. I threw my coat open, and he made a dive for his left. I threw my coat open to protect myself, knowing that I was an officer, saw that he did not know that I was an officer, to show my star. I told him I was looking for him three or four days. I said, ‘Do you know me?’ ‘No,’ he says, ‘You don't know me you mean.’ I says, ‘You are John Perry, and you get that hand away from there,’ and I threatened to shoot him if he did not. And it took him three or four minutes then, before he finally did. I took the gun away from him, threatened to kill him. His right hand was then just above his coat pocket. He dropped it down on top of his gun. I grappled his pocket and gun with my left hand, and at the same time holding my gun, threatening to shoot him. We were thus grappling about four minutes. Perry said he did not know me when I came in the door, or he would have fixed me. I put the handcuffs on one of his hands. I had taken the gun away from him and searched him, so that he didn't have another, and let him off where I met Officer Arnold. I recognize Exhibit 6 as the gun that I got from defendant, John Perry, that night. There were five cartridges in it.”

As a result of a search of defendant's effects, a key was found which fitted and unlocked the padlock on the door of the wagon in which some of the stolen goods were found. This key was identified and produced on the trial. The defendant purchased the wagon, in which the stolen property was found, from a man in Omaha on December 12th; and he brought it across the river to the McBee place, where he boarded, on December 15th, and left it there until the time of his arrest, when he was taken in charge by the police. He seems to have been in the exclusive possession thereof; for it was his, and he carried the key to the door thereof.

The manner in which the house was entered is shown by the following testimony: “There is an outside door at the north part of the house, commonly known as an outside cellar door, that lifts up, raises from the walls. That door leads to the cellarway, and there are steps leading into the cellar proper, and at the bottom of these steps, there is a door, and that door was entered and opened by whoever went in there. There is another door in a partition where the fruit is kept, that is fastened with a spring lock. If you open that door, it will close itself, unless it is latched open. The door at the foot of the stairs and this partition door were both closed on the evening of the 17th of December, 1912. There are electric lights in the cellar. They were not lighted when I went to bed about 10 p. m. I first discovered the loss of the goods at 7 a. m. The lights were then lighted. ‘That door’ [leading into the second cellar] was also opened, and that is where the stuff was gotten out of.” This is the record upon which defendant was convicted; and it is contended that it is insufficient in that the testimony fails to show the corpus delicti, and fails to sufficiently connect the defendant with the commission of the offense.

[1] Upon the first proposition, there is little or no doubt that the cellar was entered by a breaking, as the term is used in the law. The pushing open of a door which is closed, but not locked, or the pushing open of an inner door in a house which is closed, and an entry thereby is a breaking and entering within the meaning of the law. The testimony shows that two doors were opened by whoever entered the house and stole the goods.

[2][3][4] It...