Lucia v. Utterback
| Decision Date | 10 May 1924 |
| Docket Number | 35648.,Nos. 35647,s. 35647 |
| Citation | 198 N.W. 626,197 Iowa 1181 |
| Parties | LUCIA v. UTTERBACK, DISTRICT JUDGE. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Certiorari from District Court, Polk County; Hubert Utterback, Judge.
Original proceedings in certiorari to review the action of the respondent, Judge of the district Court of Polk county, in two cases wherein the petitioner was adjudged guilty of contempt in having violated a temporary injunction restraining him from keeping for sale, or selling intoxicating liquor. The original judgments are affirmed, the petitions dismissed, and the writs discharged. Dismissed, and writs discharged.Tomlinson & Maley, of Des Moines, for petitioner.
Vernon R. Seeburger, Co. Atty., and Russell Jordan, both of Des Moines, for respondent.
On October 10, 1922, a temporary injunction was issued by the district court of Polk county restraining and enjoining the petitioner from in any way or manner conducting the nuisance complained of, or any like nuisance, within the state of Iowa, either by selling, manufacturing, keeping for sale, trafficking in, or disposing of intoxicating liquors either by himself, servants, agents, or employees, or through any devise or evasion. Upon an information filed by the county attorney of Polk county on March 12, 1923, charging a violation of such an injunction, the petitioner was, upon a trial before the respondent judge, found guilty of contempt of court for violating the injunction, and fined $200. Upon a like information filed April 3, 1923, the petitioner was again tried before the respondent and found guilty of contempt and given a sentence of six months in the county jail. Separate writs of certiorari were sued out of this court to review these several judgments. The cases are submitted together.
In the first case it appears without dispute that the petitioner was, at the time of the transaction upon which the charge of contempt was based, engaged in operating a so-called “temp bar” in the city of Des Moines. Shortly after 6 o'clock on the morning of February 10, 1923, four police officers, armed with a search warrant for a restaurant next door, entered petitioner's place of business through an opening in the wall between the two rooms, and found a pitcher containing about 2 1/2 quarts of liquid. The contents of the pitcher were put into 3 quart bottles and taken away by the officers. A subsequent analysis of what is claimed to have been the identical liquid so found and seized showed the presence of more than 30 per cent. of alcohol.
[1] It is the contention of the petitioner that it is not shown that the liquid analyzed was the same as that seized, or that it was in the same condition as when seized. In this connection it is urged the court erroneously admitted the introduction in evidence of the shorthand notes of the testimony of two witnesses taken upon the former hearing. It appears that there had been a previous hearing upon a charge of contempt based upon the same transaction, at which it was discovered, after the evidence had been introduced, that the information had not been sworn to, and thereupon the proceeding was dismissed by the county attorney without prejudice, and the information in the instant case immediately filed.
The testimony of two witnesses, Dorman and Iseminger, was taken on the first hearing. These witnesses were called on the hearing in question, but failed to respond. Thereupon the court permitted their testimony, as taken on the former hearing, to be read in evidence. The petitioner relies upon the case of State v. Brown, 152 Iowa, 427, 132 N. W. 862, to sustain his contention that this evidence was improperly received, in the absence of a showing that the witnesses were beyond the reach of a subpœna. The question considered in that case was the admission of the testimony of a witness upon a former trial, when he was beyond the reach of a subpœna at the subsequent trial, and the case did not involve a consideration of section 245a, Code Supplement of 1913. That section makes the shorthand notes of the evidence admissible on any retrial of the case or proceeding in which they were taken. Under this section it has been repeatedly held that it need only appear that the witness whose former testimony is thus introduced is not present in court. Lanza v. Quarry Co., 124 Iowa, 659, 100 N. W. 488;Fitch v. Traction Co., 124 Iowa, 665, 100 N. W. 618;Van Norman v. Modern Brotherhood, 143 Iowa, 536, 121 N. W. 1080.
[2] The only other objection made to the introduction of the former testimony of these witnesses is that the former hearing on which it was taken was a nullity, and so treated by the state. No question is raised but what the hearing was a retrial of the same proceeding. The introduction of shorthand notes of testimony taken on a former trial is not made to depend upon the result of such trial, nor upon the validity of any judgment that might have been then rendered.
[3] Upon the question of the identity of the liquid found at petitioner's place of business with that analyzed, the testimony of the witness Dorman was to the effect that he was a policeman and connected with the liquor bureau; that on the occasion in question he found in petitioner's place, in a pitcher above the bar, 2 1/2 quarts of liquor; that he poured it out of the pitcher into 3 quart bottles, filling 2 of them and the third half full; that he put the liquor that he found in the bottle marked on the trial Exhibit A; that he took it to the police station, wrote the label out, put it on, and turned it over to McGinn to take to the city chemist for analysis. McGinn testified that he worked in the office of the city liquor bureau, keeping the records and taking samples of all liquors to the city chemist for the purpose of having them analyzed; that about February 10th Dorman delivered to him three bottles already labeled; that he was familiar with Dorman's handwriting, and in his opinion the labels were in his handwriting; that Exhibit A was one of the bottles Dorman gave him on February 10, 1923; that after Dorman gave it to him until the time of the analysis it was in his possession. On cross-examination, he testified that from the 10th of February until “that liquor” was given to the city chemist for analysis it was in a cabinet in the liquor bureau; that there were about 200 other samples there; that it would be possible that the labels were changed, but he did not think the label had been changed; that he put a private mark on all the samples and kept a record in a book; that he gave it to the city chemist on February 13th with four or five other samples of liquor, and took his receipt; that three other police officers had keys to the liquor bureau. Davis testified that he was city chemist; that in February he made an analysis of liquor, Exhibit A, brought to him by McGinn on February 13, 1923; that he found it to be corn whisky, or moonshine, containing 36.5 per cent. alcohol by volume and 30.2 per cent. by weight; that it was capable of being used for beverage purposes, and, if so used, would be intoxicating.
We think the evidence was sufficient to...
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