The opinion
UHLENHOPP, Justice
(dissenting).
I dissent from division III of the court’s opinion and from the result. Otherwise I concur in the court’s opinion, except for the basis of division I.
I. Division I of the court’s opinion upholds the trial court’s refusal to suppress the stolen goods. That division involves the standing of a person to object to a search and seizure and also consent to a search.
A person has standing to object to the offering in evidence against him of the fruits of a search and seizure if he was legitimately on the premises where the search occurred. Jones v. United States, 362 U.S. 257 , 80 S.Ct. 725 , 4 L.Ed.2d 697 . James Nott, Charles Nott, and defendant were riding in the front seat of James Nott’s car. The evidence contains no suggestion that defendant was a trespasser in the car or that he was not rightfully in it. On the contrary, the three men were together. Hence any of them had standing to challenge an illegal search of the car.
But was the search illegal? James Nott was the owner and driver of the car. When the sheriff initially stopped the car, James Nott said he had no objection to the sheriff’s looking in the back seat. The sheriff did so. This consent search, if it was a search, revealed the goods which the sheriff later learned to be stolen.
Later at the police station, when the sheriff asked that a search warrant be obtained, James Nott again consented to a search. Out of an abundance of caution, the sheriff required that the consent be in writing. The stolen goods were thus obtained.
Manifestly, this is a case of a consent search. The trial court properly refused to suppress the stolen goods.
II. Division III of the court’s opinion upholds the trial court’s refusal to submit breaking and entering as an included offense to the charge of burglary.
To establish burglary, the State had to prove that the offense occurred in the nighttime. Code, 1971, § 708.1. Defendant did not admit that the incident occurred at night. Seldom does a party having the burden of proving a proposition establish it as a matter of law. The State did not do so here. Hence it was for the jury to say whether the State proved by the evidence beyond a reasonable doubt that the offense occurred in the nighttime. If the jury was not so convinced, then the conviction could not be for more than breaking and entering under § 708.8.
Breaking and entering should have been submitted as an included offense. For that reason the judgment should be reversed.
REYNOLDSON, J., joins in this dissent.
McCORMICK, Justice
(dissenting).
I respectfully dissent from Divisions III, IV and the result.
I. I believe trial court erred in refusing to submit the included offense of breaking and entering under Code § 708.8. The only element of burglary not required to be established to prove breaking and entering is occurrence of the offense in the nighttime. Cf. §§ 708.1 and 708.8, The Code. The offense must occur either at night or during the day: if at night it is burglary and if in daytime it is breaking and entering. Therefore, if a jury question exists in a burglary trial as to whether the offense happened at night, it is necessary to submit the included offense of breaking and entering. State v. Jordan, 87 Iowa 86 , 54 N.W. 63 (1893). All offenses necessarily included in the charge upon which there is sufficient evidence to justify a finding of guilt must be submitted. Exclusion of an included offense is in effect *810 a directed verdict on it for defendant. If defendant in this case would have been entitled to a directed verdict were he charged only with breaking and entering, the offense was properly excluded; otherwise not. State v. Pilcher, 158 N.W.2d 631, 633 (Iowa 1968); cf. State v. Bradford, 175 N.W.2d 381, 382 (Iowa 1970).
Nonsubmission of the included offense could be justified here only if the evidence established as a matter of law the alleged offense occurred in the nighttime. There was testimony the offense occurred between 6:30 and 7:00 p. m. April 18, 1971. There was no evidence as to time of sunset. No light was used in the break-in other than a light that went on when the refrigerator was opened. Mr. Satter-thwaite saw the Nott car at the dwelling four or five hundred yards from where he was plowing without lights. He said, “It was not dark when I saw the car at first. It was getting dark.”
“Nighttime” is that period between sunset and sunrise during which there is not daylight enough by which to discern a man’s face. State v. Bell, 153 Conn. 540 , 219 A.2d 218 (1966); State v. Dougherty, 186 Kan. 820 , 352 P.2d 1031 (1960); Bowser v. State, 136 Md. 342 , 110 A. 854 (1920); State v. Perkins, 342 Mo. 560 , 116 S.W.2d 80 (1938); Klieforth v. State, 88 Wis. 163 , 59 N.W. 507 (1894); 13 Am. Jur.2d Burglary § 22; 12 C.J.S. Burglary § 14. In Bell the court observed, “ * * * [I]t is common knowledge that, immediately after sunset, there is a period of twilight in which visibility, although diminishing, is not overcome by darkness to the extent that the features of another cannot be discerned.” 219 A.2d at 219 ; cf. State v. Perkins, supra; Klieforth v. State, supra.
The evidence in this case falls far short of proving as a matter of law the offense happened at night. It was a jury question and the jury could reasonably find it was daytime. See State v. Jordan, supra. It was reversible error upon this record to refuse to submit the included offense of breaking and entering.
II. I also believe trial court erred in refusing to grant a mistrial based upon the sheriff’s testimony he had defendant “in custody on prior occasions.” It is unreasonable to suggest as does the majority that this testimony “did not imply that Osborn had ever been tried, convicted or even charged with any crime or in any way intimate defendant was of had character or guilty of prior criminal conduct.” The sheriff’s statement was obviously a calculated effort on his part to tell the jury defendant had been in trouble before and thus poison the jury’s view of his character. Trial court’s admonition could not erase the damage from this innuendo. It deprived defendant of a fair trial. See State v. Levy, 160 N.W.2d 460, 467 (Iowa 1968). The motion for mistrial should have been sustained.
I would reverse and remand for new trial/