State v. Burns

Evans, J.

The indictment' charged the defendant with the breaking and1 entering of a certain warehouse, “the property of Erank Halbig.” The principal question presented for our consideration is whether there was any proper proof of the ownership of. the building as pleaded in the ' indictment. The state introduced the testimony of the city marshal, who made -the arrest of the defendant, to the effect that he- was 'acting as night watchman to this property and that he had been employed therefor by Erank Halbig. He also testified, in effect, that Halbig had the keys of the property and was in apparent control and •occupancy thereof. The defendant called Halbig as a witness. Erom his testimony it appeared that he was *490 not th'e owner of the property bu't that tire same- was owned by the Stortz Brewing Company. It appeared therefrom also that Ilalbig Bad been in sole control of the property for many years 'and Bad carried the keys thereto during all that time. He kept stored therein beer of the brewing company, 'also more or less property of his own, and also some property received by him for safe-keeping from third parties. On the night of the alleged burglary, property of Halbig and others was contained in the building.

x. Criminal law: burglary: indictment: ownership; It is conceded by appellant that it was not necessary for the átate to show the legal ownership of the property in Halbig. It is contended, however, that, because Halbig was neither the owner nor the lessee of the . . . .. plr,emise&, iixs possession ama occupancy tiierex 3 x xr j 0f -^as the possession of the owner and not his, and that there was therefore a fatal variance between the -evidence and the indictment. There is -a sense in which it is 'true that all rightful possession of real estate, being with the consent of the owner, is the possession .of the owner. As- -against all the rest of the world the owner can claim the benefit of such possession. But all this is quite beside the mark. The purpose- of the allegation of ownership in an indictment for burglary is to specify and identify fihe offense. Burglary is not an offense against 'the fee title of the realty. It is an offense (against the security of its occupancy or habibancy. In an indictment for burglary, “ownership means any possession which is rightful >as against the burglar.” Under many circumstances the ownership may be laid with equal propriety in one person or in another, in the owner or in his tenant, in the master or in the 'servant occupying under him. Bishop on Criminal Procedure, vol. 2, sections 137, 138; State v. McIntire, 59 Iowa, 264 ; State v. Golden, 49 Iowa, 48 ; State v. Norman, 135 Iowa, 483 ; State v. Watson, 102 Iowa, 651 ; State v. Lee, 95 Iowa, 427 ; State *491 v. Semotan, 85 Iowa, 57 ; State v. Rivers, 68 Iowa, 611 ; Hahn v. State, 60 Neb. 487 ( 83 N. W. 674 ).

In the ease before us foe warehouse was known as the “Halbig waréhouse” and Halbig was shown to be the only person who assumed 'any actual control or occupancy thereof. The evidence therefore was sufficient in support of this allegation of the indictment.

Same: identity of defendant: evidence. II. It is urged that foe evidence of identification of the defendant was insufficient. The principal witness for the 'state was one Walsh, city marshal. Previous burglaries had recently been committed upon fois property. Walsh had been employed by Halbig 't'o watch the property on foe night in question. At about 11:30 p. m. he saw two persons approach foe building. After some manipulation of foe lock they opened the door and entered. Walsh was sixty feet distant. He immediately came to the door and turned foe flashlight upon foe parties and undertook to fasten the door and imprison theim in foe building. They escaped. They were arrested in a nearby town foe following morning. The testimony of Walsh was positive in its identification. He had seen -foe defendant earlier in the evening. The burglary occurred on Sunday night. The 'defendant came to foe city on Saturday evening. He was a witness in his 'own behalf. For some reason he failed to deny ■that he was at foe building in question at the time charged by Walsh except -ais a denial might be inferred for him from the following testimony: “I went down here to a barn and got in the barn. ... I went into the barn a little after nine, ... I left this barn about 6 o’clock in the morning.” The “bam” in question was somewhere in foe city of Carroll. The evidence on this question was therefore abundant to sustain foe verdict.

The foregoing disposes of all foe points raised by the appellant. We find no error. The judgment below must therefore be affirmed.