State v. Woodruff

Decision Date07 May 1929
Docket Number39682
Citation225 N.W. 254,208 Iowa 236
PartiesSTATE OF IOWA, Appellant, v. BERT WOODRUFF, Appellee
CourtIowa Supreme Court

Appeal from Polk District Court.--HERMAN F. ZEUCH, Judge.

The defendant was indicted for the crime of breaking and entering a dwelling house in the nighttime, with the intent to commit larceny. To this indictment, the defendant entered a plea of not guilty. Trial was had to the court and a jury. At the close of the State's evidence, the court, on defendant's motion, directed a verdict of not guilty. The State appeals.


John Fletcher, Attorney-general, Carl S. Missildine, County Attorney, and Alexander M. Miller, Assistant County Attorney for appellant.

Walter G. Samuels, for appellee.




Inasmuch as the defendant has been acquitted by a verdict of not guilty, returned by the jury under direction of the court, our decision can in no way affect the rights of the defendant, but is important only in determining the law applicable to the facts of the case.

We will first visualize the facts, as shown by the record. The dwelling house which the defendant broke and entered during the nighttime of April 17, 1928, is located at 1206 East Twelfth Street, in the city of Des Moines. It is a two-story house, the first story being occupied, at the time in question, by Mrs. Tellin and her two daughters, who were 12 and 15 years of age. The second story was occupied by tenants, or roomers. The second house to the north, 1218 East Twelfth Street, is a one-story bungalow, which, at the time in question, was occupied by Mrs. Kuble, with whom two young ladies were rooming. The aforesaid houses are situated on the west side of the street, and the house on the lot between them is situated farther back on the lot, so that there is no obstruction to the view from the Kuble home to the Tellin home. The front door to the Tellin home is on the east side of the house, but there is a door on the north side, leading to the apartments upstairs, and also into a hall, from which various rooms of the lower story of the house can be entered. The two lady roomers at the Kuble home were out for the evening, and returned home about 11:30 P. M. They immediately went to their bedroom, and turned on the light. Shortly afterwards, Mrs. Kuble, whose room was on the north side of her home, heard walking on the cinder driveway immediately to the north. She saw a man go to the window of the room occupied by the girls. She immediately went from her bedroom to the living room, and beckoned the two girls to come. The lights in the house were extinguished, and, there being a bright street light immediately in front of the Kuble home, they proceeded to watch the man who had been discovered prowling about the house. They saw him go across the street to the east to another house, and after a little delay, return to the Kuble home, and saw him go from there to the Tellin house. They saw him flash a light on the north door of the Tellin home. Mrs. Kuble put in an emergency call for the police, and in a very short time, three officers arrived, and were informed as to the actions of the man at the Tellin home. The three officers went to the Tellin home, and in going around the house, at the northwest corner thereof, discovered a man's cap, coat, and pants. The Tellin home was in darkness. One of the officers went to the front door, while the other two remained outside. Mrs. Tellin had heard someone in her living room, just before the officers arrived, and saw the reflections of a flash light. The officer at the front door of the Tellin home was admitted. The door leading to the basement was found open. There was a door leading from the hall to the living room; there was a sofa which had been standing across a corner of the living room, with one end extending over the hallway door, and a floor lamp in the triangular space behind the sofa. This door had not been open for months, and was kept locked, but was found open on this occasion, with the sofa and lamp shoved from the door. The 12year-old daughter was sleeping in the bedroom, with her mother, and the older girl on a daybed in the dining room. The two girls were not awakened. Almost immediately after the officer gave the alarm at the front door (the east door), the north door hereinbefore referred to was opened, and the defendant walked out of the Tellin home, and approached the clothing at the corner of the house. The clothes had been removed before he entered the house. He was surprised to see an officer in close proximity. To an inquiry made by the policeman, the defendant responded that he did not live there, but roomed there, and that somebody had stolen this clothing out of his room. He was taken to the Kuble home, and identified as the man whom Mrs. Kuble and her two young lady roomers had seen prowling about the neighborhood. He was then taken back to the Tellin home, and in his presence, Mrs. Tellin was asked by one of the officers if she knew the defendant, and she said: "No, I don't; I never saw him before." She was then told of the defendant's claim that he roomed there, to which she responded, "Well, he doesn't,--I never saw him." On the way to the police station, the officers said to the defendant: "You don't live there; you just as well tell us the truth." The defendant hesitated for some time, and finally said that he lived at 728 West Third Street. The officers asked him what he was doing in the Tellin home, and he refused to answer. The defendant was searched at the police station, and nothing was found on his person except a knife, watch, and flash light. The officers testified that they smelled no liquor on him, and saw no signs of intoxication.

The foregoing is substantially all of the testimony in the case. It is not shown that the defendant stole any property at the Tellin home. The defendant's motion for a directed verdict was based upon the grounds that the State had failed to prove that the defendant broke and entered the Tellin home with the intent to commit larceny therein; that there was a failure of proof that the defendant intended to steal any property or commit larceny. The State bitterly complains of the ruling of the court in sustaining said motion.

It is apparent that there is ample evidence from which the jury could find that the defendant broke and entered the dwelling house. Indeed, there is no evidence to the contrary. The question for determination is: Should the court have permitted the jury to find that his intent was to commit larceny? It is the State's contention that an unexplained breaking and entering of a dwelling house in the nighttime is sufficient to sustain a verdict that the breaking and entering was done with intent to commit larceny. This is the general rule, and is sustained and supported by the weight of authority. See State v. Worthen, 111 Iowa 267, 82 N.W. 910; State v. Maxwell, 42 Iowa 208; State v. Teeter, 69 Iowa 717, 27 N.W. 485; State v. Fox, 80 Iowa 312, 45 N.W. 874; State v. Mecum, 95 Iowa 433, 64 N.W. 286; People v. Soto, 53 Cal. 415; Moseley v. State, 92 Miss. 250 (45 So. 833); Woodward v. State, 54 Ga. 106; People v. Noon, 1 Cal.App. 44 (81 P. 746); Burrows v. State, 84 Ind. 529; State v. McBryde, 97 N.C. 393 (1 S.E. 925); Cady v. United States, 293 F. 829; Smith v. State, 51 Tex.Crim. 427 (102 S.W. 406); Mullens v. State, 35 Tex.Crim. 149 (32 S.W. 691); Alexander v. State, 31 Tex.Crim. 359 (20 S.W. 756); 4 Ruling Case Law 441. Many other authorities upon this proposition could be cited.

In State v. Worthen, supra, the defendant was discovered at a late hour of the night in the bedroom of Grace Fort, with his hand upon her person. Upon her calling for assistance, the defendant left the house. The defendant was convicted of breaking and entering a dwelling house with intent to commit larceny. The conviction was affirmed by us. We there said:

"The defendant insists that, though the motive in entering Fort's house cannot be justified, the intent to steal is not to be inferred from these facts. Some presumptions are to be indulged in against one who enters a building unbidden, at a late hour of night, else the burglar caught without booty might escape the penalties of the law. 'The love of gain, the desire to get and have, is so wide a principle of human nature that, other motives being eliminated, that remains as a sort of residuary solvent of conduct.' Steadman v. State, 81 Ga. 736 (8 S.E. 420). People are not accustomed, in the nighttime, to enter the homes of others, when asleep, with innocent purposes. The usual object is theft, and this is the inference ordinarily to be drawn, in the absence of explanation, from breaking and entering at night, accompanied by flight upon discovery, even though nothing has been taken. State v. Teeter, 69 Iowa 717 at 718, 27 N.W. 485; State v. Maxwell, 42 Iowa 208 at 211; State v. McBryde, 97 N.C. 393 (1 S.E. 925); Alexander v. State, 31 Tex.Crim. 359 (20 S.W. 756).

In People v. Soto, supra, from which, in the Worthen case, we quoted approvingly, the Supreme Court of California made the following pronouncement:

"The defendant was indicted for burglary, in having entered a dwelling house in the nighttime, with the intent to commit a petit larceny. The proof was that the defendant, at a late hour of the night, after the family had retired and the lights had been extinguished, entered the building through a window, and was found in a bedroom, in which a woman and three infant children were sleeping in one bed; that he seized the woman by the throat, and threw himself across the bed, but, on her making an outcry, left the building, without any further act of violence, and without...

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