State v. Bourgeois
Decision Date | 11 February 1930 |
Docket Number | 39620 |
Citation | 229 N.W. 231,210 Iowa 1129 |
Parties | STATE OF IOWA, Appellee, v. ED BOURGEOIS, Appellant |
Court | Iowa Supreme Court |
REHEARING DENIED SEPTEMBER 26, 1930.
Appeal from Lee District Court.--JOHN E. CRAIG, Judge.
The defendant was indicted for maintaining a liquor nuisance, and from a conviction and sentence he prosecutes this appeal.
Affirmed.
B. F Jones, B. A. Dolan, and E. C. Weber, for appellant.
John Fletcher, Attorney-general, and Neill Garrett, Assistant Attorney-general, for appellee.
I.
The appellant challenges the sufficiency of the evidence to sustain a conviction. The evidence shows that the house occupied by the appellant in Fort Madison, Lee County, Iowa, was searched, and the officer therein seized thirteen barrels of wine, five kegs containing wine, one gallon jug containing wine, and one gallon jug containing "hooch," together with three empty kegs and some empty bottles and jugs. The appellant testified:
"There was 7 50-gallon barrels, and there was 4 30-gallon barrels, and there was 6 16-gallon kegs, all practically full of wine, that I still had left from the wine that my father gave me."
There was evidence of a witness that he bought a gallon of wine from the appellant at the premises where said liquor was seized, and paid therefor $ 4.00 or $ 4.50. The witness also testified that he did not remember how many times he had bought wine from the appellant before, but that it was more than once, and that he had paid for it.
A chemical analysis of the wine showed that it contained 9.6 per cent of alcohol by weight, and an analysis of the so-called "hooch" showed that it contained 38.5 per cent of alcohol by weight.
We think the evidence was sufficient to carry the case to the jury and to sustain a conviction.
II. The liquor in question was seized under a search warrant. Complaint is made that the search warrant was improperly issued, because, while the information upon which it was based was sworn to, it was not supported by a sworn oral statement of facts. The evidence of the officer conducting the search and the exhibits obtained by him were admissible. State v. Rollinger, 208 Iowa 1155, 225 N.W. 841, and cases cited therein.
III. Error is predicated upon alleged misconduct of the court in remarks in the presence of the jury. The following is an excerpt from the record, and occurred during the direct examination of a witness in behalf of the State:
No claim of misconduct on the part of the court was made at the time, nor was the alleged misconduct made a ground of the motion for new trial. The matter appears in an amendment to appellant's abstract. If it be assumed that the record presents any question for review at this point, there is no error apparent. The statement of the court in ruling upon the objection of appellant's counsel, as follows, "Well, it is a fact," was clearly responsive to the objection interposed, which was that the evidence called for was "incompetent, immaterial, and calling for the opinion and conclusion of the witness." It was not calling for an opinion or conclusion, but for a statement of a fact; and the court held, and properly so, that the question called for a fact, as distinguished from an opinion. There was no error here.
The same is true of the ruling of the court that the witness The objection upon which the court was ruling was that the interrogatory "called for the opinion and conclusion of the witness." The ruling was correct, and the remark of the court merely indicated the reason for the ruling, and that the question was not calling for a conclusion or opinion of the witness. There was no error at this point.
IV. Appellant contends that the corpus delicti was not proven. This argument is predicated upon the testimony of the witness who purchased liquor of the defendant, as follows:
He also testified: "I know what wine is, and I though I was buying wine."
In view of the evidence of this witness and of the other evidence in the case, the court did not err in overruling the appellant's motion to strike the testimony of said witness or to direct a verdict in behalf of the appellant.
V. Appellant offered a character witness. Objection is now made that the asking of certain questions upon the cross-examination of this witness constituted misconduct. The court ruled promptly and correctly on all objections that were interposed. There was no objection whatever that the cross-examination was improper in that the asking of the questions was misconduct. Upon this record, there was no error of which the appellant can now complain.
In State v. Conroy, 126 Iowa 472, 102 N.W. 417, objectionable testimony was introduced. The court said:
In State v. National Selright Assn., 192 Iowa 629, we considered a situation very similar to the one in the case at bar, and said:
As bearing on this question, and to the same general effect, see, also, State v. Smith, 192 Iowa 218, 180 N.W. 4; State v. Lilteich, 195 Iowa 1353, 191 N.W. 76; State v. Huston, 187 Iowa 1000, 174 N.W. 641; State v. Williams, 195 Iowa 785, 192 N.W. 901.
VI. Complaint is made of Instruction No. 9. The instruction was favorable to the appellant, and cannot be construed as being in any way prejudicial to him. If there was error in the instruction, it was not error of which the appellant can complain.
VII. Complaint is made of Instruction No. 10. The instruction was also favorable to the appellant, and not prejudicial to him. If there was error in the instruction, it was not error of which the...
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