State v. Bourgeois, 39620.

• Decision Date: 11 February 1930
• Docket Number: No. 39620.,39620.
• Parties: STATE v. BOURGEOIS.
• Court: Iowa Supreme Court

210 Iowa 1129

229 N.W. 231

STATE

v.BOURGEOIS.

No. 39620.

Supreme Court of Iowa.

Feb. 11, 1930.

Appeal from District Court, Lee County; 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 and B. A. Dolan, both of Keokuk, and E. C. Weber, of Ft. Madison, for appellant.

John Fletcher, Atty. Gen., and Neill Garrett, Asst. Atty. Gen., for appellee.

FAVILLE, J.

[1] The appellant challenges the sufficiency of the evidence to sustain a conviction. The evidence shows that the house occupied by the appellant in Ft. Madison, Lee county, Iowa, was searched, and the officer therein seized 13 barrels of wine, five kegs containing wine, one gallon jug containing wine, and one gallon jug containing “hootch,” together with three empty kegs and some empty bottles and jugs. The appellant testified: “There was 7 fifty gallon barrels and there was 4 thirty gallon barrels and there was 6 sixteen 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 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 “hootch” 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.

[2] 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 (Iowa) 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:

“Q. Well, you bought you say a gallon. About how much of that gallon did you drink? You have drunk wine before you drunk the wine you purchased from him, before? You have bought wine––you have drunk wine other than wine you purchased from the defendant, haven't you?

Mr. Jones: I object to any evidence of any sale, as there is none plead in the indictment and there is no statement in the indictment to whom sold, or to parties unknown, and it is a charge of nuisance, and he can't prove a sale under a nuisance unless it is plead in the indictment.

The Court: Objection overruled. Defendant excepts.

A. Yes.

Mr. Dolan: Object to that as incompetent, immaterial, calling for the opinion and conclusion of the witness.

The Court: Well, it is a fact. Defendant excepts.

Q. And you know what wine is?

Mr. Dolan: Same objection.

The Court: Well, he can answer whether he knows or not. Defendant excepts.

Mr. Jones: I object to any evidence of any sale as there is none plead in the indictment, and there is no statement in the indictment to whom sold, or to parties unknown, and it is a charge of nuisance, and he can't prove a sale under a nuisance unless it is plead in the indictment.

The Court: Objection overruled. Defendant excepts.

A. Yes, I know what wine is.

Q. Well, please tell the jury whether or not it was wine you bought from the defendant? A. Well, I thought I was buying––

Mr. Dolan: Objected to as calling for the opinion and conclusion of the witness.

The Court: He has already testified he bought wine from the defendant. I think that covers the proposition. Defendant excepts.”

[3] 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.

[4] The same is true of the ruling of the court that the witness “has already testified he bought wine from the defendant. I think that covers the proposition.” 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.

[5] 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:

“Q. Was this wine intoxicating liquor? Did you have any effects of intoxication besides just sickness? A. No, it didn't on me. Maybe I didn't drink enough of it.”

He also testified:

“I know what wine is and I thought 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.

[6] 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: “Had there been objections to the testimony * * * there could be no question as to the inadmissibility of such testimony. But a defendant in a criminal case may waive objections to incompetent testimony, and when he does so, by his silence or otherwise, we will not reverse because it has been admitted.”

In State v. National Selright Ass'n, 192 Iowa, 629, 185 N. W. 145, 146, we considered a situation very similar to the one in the case at bar, and said: “It is claimed there was error at this point in overruling the objection, if it was an objection. It will be observed that the statement by Mr. Abrahamson was made in the middle of the answer of the witness. There was no motion to exclude the answer or any specific part of it. The statement is that this testimony was not competent, etc. A part of it was proper, and in response to questions propounded by counsel for defendant. No specific objection or motion was made as to the part of the answer claimed to be improper. State v. Hasty, 121 Iowa, 507–517, 96 N. W. 1115;Hay v. Hassett, 174 Iowa, 601–607, 156 N. W. 734;Bank of Bushnell v. Buck Bros., 161 Iowa, 362, 365, 142 N. W. 1004. We think there was no error here of which appellants may complain.” 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;...