State v. Stennett

• Decision Date: 14 May 1935
• Docket Number: 42870.
• Citation: 260 N.W. 732,220 Iowa 388
• Parties: STATE v. STENNETT et al.
• Court: Iowa Supreme Court

260 N.W. 732

220 Iowa 388

STATE v. STENNETT et al.

No. 42870.

Supreme Court of Iowa.

May 14, 1935

Appeal from District Court, Page County; J. A. Murray, Judge.

The indictment against the defendants contained two counts. On trial to a jury there was a verdict of guilty on both counts against each of the four defendants, and the defendants appeal.

Affirmed.

Earl R. Ferguson, of Shenandoah, for appellants Judd Stennett, Bud Mordhorst, and Jack Griffin.

Frank Wisdom, of Bedford, for appellant George Baker.

Edward L. O'Connor, Atty. Gen., Walter F. Maley, Asst. Atty Gen., and Willis A. Glassgow, Co. Atty., of Shenandoah, for the State.

ALBERT, Justice.

The four defendants were jointly indicted and the indictment contained two counts; the first count charging breaking and entering with intent to commit a public offense, to wit larceny; and the second count charging, in connection with the crime charged in the first count, larceny from a building in the nighttime, under Code, § 13008. To this indictment all the defendants, except Baker, demurred. One of the grounds of the demurrer was that the said indictment " is duplicitous and charges these defendants with two separate and distinct offenses or crimes, not permissible by the statute, and contrary to law and the statutes of this state." This demurrer was overruled, and the ruling of the court so made is the first question discussed.

The validity of the contention of the defendants in relation to this ground of the demurrer calls for the construction of Code, §§ 13737, 13738, and a part of section 13738-b1. The first section above referred to provides that the indictment must charge but one offense, etc. The second section provides that in case of compound offenses, where, in the same transaction, more than one offense has been committed, the indictment may charge the several offenses and the defendant may be convicted of any offense included therein. The third of the sections above referred to provides:

" An indictment may charge in separate counts:

1. A burglary and one or more other indictable offenses committed in connection with said burglary. The term ‘ burglary’ shall embrace any violation of sections 12994 to 13004, inclusive. * * *"

We had before us this same question in the case of State v Frey, 206 Iowa, 981, 221 N.W. 445.We there held that the question of duplicity of an indictment must be raised by demurrer, and if not so raised it is waived. In that case we did not pass on the question we have before us in this case.

Later, in the case of State v. Leasman, 208 Iowa, 851, 226 N.W. 61, 62, a companion case to the Frey Case, we again were confronted with the application of these statutes, and the question was properly raised by demurrer. In the Leasman Case we held that the indictment in the case was bad because it charged two crimes without alleging or pointing out in any way that the crime charged in the second count " was committed in connection with the crime of burglary or breaking and entering." The inference to be drawn from the ruling in the Leasman Case is that, if the crime charged in the second count is alleged to have been committed in connection with the crime charged in the first count, then the assault on the indictment is not good. We think the inference made in that case is the correct statement of the law.

The aforesaid section 13738-b1 specifically authorizes this kind of an indictment when " a burglary and one or more other indictable offenses committed in connection with said burglary" are charged. We think that the above provision of the statute was specifically intended to cover the exact situation we have in this case, and the indictment is good because it alleges in terms that the matters charged in the second count of the indictment were " committed in connection with" the matters charged in the first count of the indictment. The court's action in overruling the demurrer, therefore, was proper.

It is next urged that the court erred in not submitting to the jury the included offenses of larceny, or larceny in the nighttime, and also the included offense of attempting to break and enter a building with intent to commit a public offense. That these are all included offenses in the matters charged in either the first or second counts of the indictment may be admitted. But the rule governing the court in submitting two offenses is discussed in the case of State v. Marshall, 206 Iowa, 373, 220 N.W. 106, 107, which lays down the exception to this rule in these words: " * * * if there is no evidence from which the jury could find the defendant guilty of the included offense, then such included offense need not be submitted. [Citing cases.] Also, where under the evidence the defendant is clearly guilty of the offense charged or not guilty, it is not error to fail to give instructions with reference to included offenses." Citing cases.

We think these last two rules are particularly applicable to the situation before us and, therefore, the court did not err in not instructing on included offenses. A summary of the evidence showing the application of this rule will be made later in the opinion.

It is insisted that the evidence is insufficient to identify the defendants, or connect them with the commission of the crime; and especially this is urged in behalf of Jack Griffin.

The jury could have found from the evidence in the case that Tyler Brothers were engaged in the manufacture and sale of soft drinks, and the wholesale distribution of candy and beer. Their place of business in Shenandoah was located at No. 111 Blossom street, being a building which extended east and west, on the north side of the alley. On the alley side of said building there were a number of windows. The beer handled by this concern was County Club, Schmidt's City Club, and Blue Ribbon beer. Across the alley to the south was a building occupied by a restaurant conducted by the Drurys. In the Tyler plant, at the time in question here, there were numerous cases of beer piled just inside the windows on the south side of the building. On the morning of the 21st of June, 1934, a window was broken in the alley side of the Tyler building, and two cases of beer were taken from said building and carried away. This occurred shortly after 2 o'clock a. m.

The night watchman of the town testifies that he inspected this building and the windows in controversy about 11 o'clock on the night of the 20th, and there were none broken; and again about 1:35 or 1:40 a. m., and the windows were all right and were closed. " At about 2:20 or 2:30 in the morning I saw them again, and the first window west of the big door that they drive in was broken. The bottom sash was out." About 11 o'clock that evening he saw Mordhorst, Stennett, Baker, and Griffin, with a fellow called Runt Benedict. They parked their automobile in front of what is called the Auracher building, which is across from the Tyler building. They were in Mordhorst's car at the time, Stennett and Griffin were sitting in the car and Baker was standing alongside the car. " I saw them again later, about 12 o'clock. They had then parked their car about 30 or 40 feet north of the Drury Café, on the east side of Blossom street. At about 15 minutes till 2 they parked their car a little farther south and headed north on Blossom street. There were five men in the car at that time. That is the last I saw of them that night."

Mrs Fern Drury testifies that she was in the caféon the night in question. About 2 o'clock in the morning of the 21st of June, her attention was attracted to the breaking of glass. She went down the stairway toward the back door. Just then two men came into the alley from the street. She saw them go to the window and break out the wooden crosspieces in the sash and pull out the glass, and then remove a case of beer. They set it in the shadow, and removed another case and carried it to the car, which was on Blossom street in front of Tyler Brothers'. They went back and got the first case and took it to the car. She had " a pretty fair look at them. One of them was a short man, dark-complected, wore a blue shirt and dark trousers. The other was taller, quite a little taller, wore a light blue shirt and lighter trousers. The taller one of the two men had come in (to the café) in the afternoon of the day before, the 20th, to inquire about Stennett, and on the night of the 20th, about midnight, he came in and bought five bottles of pop. This was the taller one. I...