Joyner v. Utterback

• Decision Date: 14 November 1923
• Docket Number: 35528
• Citation: 195 N.W. 594,196 Iowa 1040
• Parties: W. H. JOYNER et al., Petitioners, v. HUBERT UTTERBACK, Judge, et al., Respondents
• Court: Iowa Supreme Court

195 N.W. 594

196 Iowa 1040

W. H. JOYNER et al., Petitioners, v. HUBERT UTTERBACK, Judge, et al., Respondents

No. 35528

Supreme Court of Iowa, Des Moines

November 14, 1923

Certiorari to Polk District Court.--HUBERT UTTERBACK, Judge.

CERTIORARI to review the action of the district court in and for the ninth judicial district, in adjudging the petitioners to be guilty of a violation of a liquor injunction.--Writ annulled.

Writ annulled and petition dismissed.

T. F Mantz and F. T. Van Liew, for petitioners.

Vernon Seeburger, County Attorney, for respondents.

FAVILLE J. EVANS and ARTHUR, JJ., concur. STEVENS, J., concurs in result.

OPINION

FAVILLE, J.

On or about the 30th day of December, 1922, the petitioners herein and each of them were permanently enjoined by order of the district court of Polk County, Iowa, from keeping for sale or selling intoxicating liquors, in violation of law. The petitioners were found guilty of contempt in violating said order of injunction, and prosecute this action in certiorari, to review the action of the lower court in so finding them guilty.

I. It is petitioners' first contention that the trial court failed and neglected to make a ruling upon certain evidence offered during the trial. The petitioners fail to point out the specific interrogatories to which objections were interposed and upon which the court failed to make a ruling, except in a few instances, which we have examined with care. The ruling of the court was that "the answer may stand, subject to the objection."

In McGlasson v. Scott, 112 Iowa 289, 83 N.W. 974, we held that a proceeding in contempt was criminal in its nature, and that parties thereto were entitled to rulings on evidence.

In Haaren v. Mould, 144 Iowa 296, 122 N.W. 921, we said:

"It is argued that the record discloses fatal error in the act of the trial court in declaring to rule upon the objection made by the accused to its jurisdiction and to the introduction of evidence. It is the right of the accused to have his objections ruled upon, and if that right is not recognized, with the result that improper evidence is introduced to his prejudice, it would doubtless call for a reversal."

It is commended by respondents that we must indulge the presumption that the court refused to consider this evidence, upon final determination of the case. Respondents rely upon the rule of Foster v. Hinson, 76 Iowa 714, 39 N.W. 682, wherein we said:

"Conceding that the objection should have been sustained, the question remains whether we can indulge the presumption that the evidence was considered by the court in making the findings upon which the judgment is necessarily based. It will be observed that the evidence was received subject to the objection, and in this respect this case differs from Williams v. Soutter, 7 Iowa 435. As the evidence was admitted subject to objection, it cannot be said, with the required certainty, that it was considered by the court; for error must affirmatively appear."

Good Roads Mach. Co. v. Ott, 186 Iowa 908, 171 N.W. 721; Hunt & Co. v. Higman, 70 Iowa 406, 30 N.W. 769; Spelman v. Gill, 75 Iowa 717, 38 N.W. 168; Foster v. Hinson, 76 Iowa 714, 39 N.W. 682; Wright v. Farmers' Mut. L. S. Ins. Assn., 96 Iowa 360, 65 N.W. 308; Matthews v. Luers Drug Co., 110 Iowa 231, 81 N.W. 464; Finnegan v. City of Sioux City, 112 Iowa 232, 83 N.W. 907; Willis v. Weeks, 129 Iowa 525, 105 N.W. 1012.

II. The State offered evidence to the effect that a certain bottle, known as Exhibit A, was seized in petitioners' place of business, and that the contents were afterwards examined by a chemist, and found to contain a high percentage of alcohol. Proper objections were made to the offer of the exhibit and to the testimony of the chemist, on the ground that the identity of the contents of the bottle was not established; that it was not traced from the possession of the petitioners to the custody of the chemist.

We have held that, in order that proof may be admitted of the contents of a bottle or package claimed to have been taken from a defendant, it is necessary to establish a complete chain of evidence, tracing the possession of the exhibit from the defendant to the final custodian, and that, if one link in the chain is entirely missing, the exhibit cannot be introduced in evidence. See a full discussion in State v. Phillips, 118 Iowa 660, 92 N.W. 876, and State v. Kingsbury, 191 Iowa 743, 183 N.W. 325.

It must be conceded, from an examination of the record, that there is a failure of strict legal proof to show a complete chain tracing the exhibit and its contents from the possession of the petitioners to the chemist who made an analysis of the contents and testified in regard thereto. The bottle and its contents were taken from the petitioners' place by an officer, who took it to the "liquor bureau." Another witness testified that he found it at this place and took it to the chemist; but it appeared that other parties had access to the room, and that a considerable period of time had elapsed; and it does not clearly appear in whose custody the exhibit remained, and whether or not it had been tampered with.

Under our previous holdings, this evidence was incompetent. All of the evidence in regard to this subject matter was received by the court subject to the objections interposed thereto. The respondents contended that this evidence was merely cumulative, and that we must indulge the presumption that the court did not take it into consideration in a final determination of the case.

As pointed out in the preceding division of this opinion and the cases cited therein, we must indulge the presumption that the court did not consider evidence which was improper, and which had been received subject to the objections interposed thereto. Aside from the objectionable evidence, there was evidence in the record that would support the conclusions of the trial court. We therefore must assume that the court predicated its conclusion upon such evidence, without regard to the improper evidence which had been received subject to objections.

III. Petitioners complain because the trial court permitted evidence tending to show the reputation of the place conducted by petitioners.

We have held that, in an action for contempt, the reputation of the defendant as a bootlegger, and of the place where he lived as being a place where intoxicating liquors were kept and sold was not admissible. McMillan v. Anderson, 183 Iowa 873, 167 N.W. 599. Evidence of this character was...