State v. Sullivan

• Decision Date: 16 October 1912
• Citation: 156 Iowa 603,137 N.W. 918
• Parties: STATE v. SULLIVAN ET AL.
• Court: Iowa Supreme Court

156 Iowa 603

137 N.W. 918

STATE

v.SULLIVAN ET AL.

Supreme Court of Iowa.

Oct. 16, 1912.

Appeal from District Court, Mahaska County; B. W. Preston, Judge.

The defendants were jointly indicted for burglary. There was a verdict and judgment of conviction, and they appeal. Reversed.Dan Davis and McCoy & McCoy, all of Oskaloosa, for appellants.

George Cosson, Atty. Gen., for the State.

EVANS, J.

It is the contention of the state that on September 11, 1911, a powder house, located about 2 1/2 miles from Oskaloosa, was broken and entered, and that a box of dynamite was stolen therefrom. The three defendants were discovered in a box car at the Iowa Central yards of Oskaloosa on the morning of October 4, 1911. They were arrested and charged with the crime. Various circumstances were relied on as connecting them therewith. A few days after the alleged burglary, one Scoles found a box containing some sticks of dynamite, apparently concealed, at a distance of about 300 yards from the powder house. On the morning of October 4th he saw five men in the near vicinity of the concealed dynamite. He heard a part of their conversation which indicated their character as burglars. One of them took some or all of the sticks of dynamite contained in the box and wrapped them in a blanket and carried them for some distance up the railroad track and laid them down and left them. He identified the defendants as being three of the five men he saw at such time and place. The defendants were arrested about 8 o'clock in the morning in a box car, which they had apparently occupied during the night. Neither dynamite nor weapons were found upon their persons, nor about the car. They had a few coins of money and an abundance of intoxicating liquor, and all were intoxicated. They were tramps, and two of them were seriously crippled. They all testified and gave consistent accounts of their whereabouts on September 11th, and from such date down to the time of their arrest. They claimed to have come into Oskaloosa the night before, and to have occupied the box car for their sleeping place, and denied that they had been in the neighborhood where Scoles claimed to have seen them on October 4th. The state's case rests wholly upon circumstantial evidence, and the circumstances thus put forth are of a very unsatisfactory and inconclusive kind. To add to the difficulty, the evidence of the corpus delicti is fatally weak. This was proved by the testimony of the witness Vermillion alone. We set out herewith substantially his entire testimony, omitting objections and rulings:

“I have lived in Oskaloosa about 20 years. Own a powder house, which is located about 2 1/2 miles southwest from town. I keep dynamite caps and sporting powder and mine powder in this powder house. This powder house was broken into some time during last fall. The lock was broken off. I did not know until the 11th or 12th of September that it had been broken into. I made a check of the dynamite, and found a 25-pound box of 40 per cent. dynamite short. I was not certain as to the check then for a long time. I had not made any check on the caps at all. There was a horse blanket in the powder house. Exhibit A and B is a part of the blanket that was in the powder house at the time. Q. What would you say as to the box? Are you then certain that was similar to the box taken out of your powder house? A. I could not say if that is the box. It is the same kind of dynamite. The box is similar to the one that was taken out. It is a 25-pound box. I own the powder house. It goes under the name of the Oskaloosa Powder Company. It was a Yale lock on the house at the time. I took the broken lock to Art Walls. Exhibit D, I think, is a piece of the blanket. I would not be able to identify the dynamite or any broken box that way. I could not tell 40 per cent. from 60 per cent. dynamite, because I sell it all in boxes. I could identify the caps as being the same as I handled. Exhibit E is a box...