I find myself unable to agree with the majority's opinion, and therefore respectfully dissent.
The defendant in this case was charged with the crime of willfully and unlawfully breaking and entering a public building with intent to commit a public offense therein, to wit: larceny. The evidence consisted of the statements made to the sheriff of Pottawattamie county and a state agent, by the defendant, and a written statement made by him, which is referred to in the record as Exhibit 4.
It is conceded that the defendant was not present and took no part in the breaking and entering of the building, and the case as to him was submitted to the jury only on the issue of whether he aided, abetted, or assisted in the commission of breaking and entering said building.
The defendant with two other men had driven from the city of Des Moines to Omaha. They had started back and had reached the town of Avoca, where they stopped for lunch along in the evening. It was dark. They were getting short of gasoline. The defendant was driving the car. However, it was not *Page 603 his car, but belonged to a lady friend of one of the men with him. They drove past a warehouse which belonged to the state highway commission. Along the road a tractor stood. The defendant stopped the car. The sheriff and state agent both testified that in the statements made to them by the defendant he at all times claimed he understood they were going to get the gasoline from the tractor which was out in the road, and that he protested to his two companions against taking gasoline or breaking or entering any building. The defendant is not charged with the crime of larceny. He is charged with breaking and entering. There is not a scintilla of evidence in this record which shows that at the time the two men with the defendant left the car they intended to break into this public building. The undisputed evidence shows that he protested to his companions against the breaking into of any building. He remained in the car some distance from the tractor and the building. He could not see where his companions went, because it was dark. He did not know for two days afterwards that they had broken and entered this building. But, the majority say:
"The defendant, in his statement, says: `I begged them not to break in and get into trouble.' While the conversations that took place between these parties are not before the court, the primary object seems to have been to get a supply of gasoline so that they might get back to Des Moines. Certainly something must have been said which would call forth from the defendant the statement above quoted. He further says: `When I found out they were going to break in, I drove up the road.' This shows a knowledge or realization on his part that they were going to break into the building."
Even conceding that he had knowledge, which I do not think the record shows, that they were going to break into the building, that would not, in my judgment be sufficient to say that this man was guilty of breaking and entering. He continually protested. In his own words, he "begged" these other men not to break and enter. That is the undisputed record.
This court in the case of State v. Bosworth, 170 Iowa 329, on page 345, 152 N.W. 581, 588, said:
"An instruction is erroneous if it authorizes the jury to convict the defendant, because of his presence or mere mental *Page 604 approval or consent, without requiring that he shall have aided in or encouraged the commission of the crime. * * * Mere passive failure to disclose the commission of a crime will not make one an accessory. Davis v. State, 96 Ark. 7, 130 S.W. 547, 549. In Hicks v. United States, 150 U.S. 442, 14 S. Ct. 144, 37 L. Ed. 1137, a case which appellant erroneously cites for the claim that the court should have instructed more specifically on the definition of aider and abettor, it is, however, held that the mere use of words, the effect of which is to encourage another to commit a crime, does not make the user thereof an aider and abettor unless he intended them to have that effect."
In the case at bar we do not have a man using words to encourage his companions to commit the crime. We have an undisputed record that he did everything in his power to prevent them from committing a crime. He protested. He begged. And when he found out what they were going to do, he drove away. And yet, upon such a record this man is convicted of the crime of breaking and entering and is sentenced to the penitentiary for a period of forty years.
This court, in the case of State v. Wolf, 112 Iowa 458, 463, 84 N.W. 536, 538, said:
"It has never been held, so far as we are advised, that mere presence at the scene of crime constitutes aiding and abetting. Indeed, it is elementary that such is not the case. Nor is it sufficient, in addition thereto, that the person present mentally approves what is done. `The party to be charged must,' in the language of Cockburn, C.J., `incite or procure or encourage the act.' Bish. Cr. Law, sections 628-633. The court in this instruction told the jury, in effect, that, if the defendants were near enough to give Icenbice's acts countenance and support, they were guilty as principals. This doctrine would make a principal of every man whose curiosity tempted him to stop and look for a moment at any transaction involving a crime. The instruction cannot be sustained, and was prejudicial to the defendants."
In the case at bar all of the evidence shows that this defendant protested against the commission of the crime. In the case cited the courts said that mere presence and mental approval is not sufficient. "The party to be charged must * * * incite *Page 605 or procure or encourage the act." Where in this record the majority find any evidence to show that the defendant incited, procured, or encouraged the commission of the breaking into and entering of this public building, I am unable to ascertain.
As I read this record, there is not sufficient evidence — in fact, I find no evidence that would sustain a verdict against this defendant that he aided, abetted, or counseled McKay and Murray in breaking into said building. It was the duty of the lower court, upon the motion of the defendant made at the close of the evidence, to direct a verdict, and the lower court having so failed, I would reverse the case.
I am authorized to state that Chief Justice KINTZINGER and Justice RICHARDS join in the dissent.