State v. Brundage
| Decision Date | 15 December 1925 |
| Docket Number | 37142 |
| Citation | 206 N.W. 607,200 Iowa 1394 |
| Parties | STATE OF IOWA, Appellee, v. EARL BRUNDAGE, Appellant |
| Court | Iowa Supreme Court |
Appeal from Linn District Court.--JOHN T. MOFFIT, Judge.
THE defendant, Earl Brundage, was convicted in the court below of the crime of bootlegging and being a persistent violator, and from a judgment sentencing him to the county jail at hard labor for a period of six weeks, he appeals.
Affirmed.
Carl F Jordan, for appellant.
Ben J Gibson, Attorney-general, S. S. Faville, Assistant Attorney-general, and W. J. Barngrover, County Attorney, for appellee.
STEVENS J. FAVILLE, C. J., and DE GRAFF and VERMILION, JJ., concur.
I.
An information charging appellant with the crime of bootlegging, and also with being a persistent violator of the prohibitory liquor laws, was filed against him in the district court of Linn County on March 16, 1925. The information alleged that the offense was committed on or about October 23, 1925, and that appellant pleaded guilty to a similar offense in the district court of said county on October 20, 1924. After the State had introduced all of its testimony, and appellant had moved for a directed verdict, the county attorney was granted permission to amend, and amended, the information by changing the date from October 23, 1925, to October 23, 1924. The evidence upon which the conviction was found is, in substance, as follows:
Appellant and one Fred Averill were prisoners in the county jail of Linn County, and on the 23d day of October, 1924, were taken in charge by M. L. Hurley, who had been deputized by the sheriff for that purpose, to work upon the public highway. Their route took them through South Cedar Rapids. When they arrived at a point on Fifth Avenue, Hurley, at the request of Averill, stopped the truck in which they were riding, and appellant went behind some buildings, and returned to the truck. The three proceeded toward their destination, where, upon arrival, appellant took from his pocket a pint bottle of alcohol, which the three men drank. Later in the afternoon, appellant informed them that he knew where there was some more liquor, and they drove to the place indicated by him, where he produced a gallon jug of alcohol. The three men drank from the jug, and when they arrived at Marion, all of them were more or less intoxicated. Hurley took the jug, with the residue of the alcohol, with him.
It is not claimed by appellant that the evidence does not show the commission of the offense charged in the information; but it is insisted that Hurley and Averill were accomplices, and that a conviction could not be had upon their uncorroborated testimony. The evidence further disclosed that Brundage informed Averill, before they left Marion, that he knew where he could get some liquor, and requested him to tell Hurley where to stop. No one appears to have seen the liquor on appellant's person until the trio arrived at their destination. The general rule for determining whether a witness is an accomplice or not is to determine whether he could have been indicted and convicted of the same crime. State v. Duff, 144 Iowa 142, 122 N.W. 829; State v. Bartlett, 128 Iowa 518, 105 N.W. 59; State v. Bosworth, 170 Iowa 329, 152 N.W. 581; State v. Gates, 197 Iowa 777, 197 N.W. 908.
The statute (Section 1927, Code of 1924), upon which the indictment is based, so far as material, is as follows:
"Any person who shall, by himself, or his employee, servant, or agent, for himself or any person, company, or corporation, keep or carry around on his person, or in a vehicle, or leave in a place for another to secure, any intoxicating liquor as herein defined, with intent to sell or dispose of the same by gift or otherwise, * * * shall be termed a bootlegger, and shall be fined not less than three hundred dollars nor more than one thousand dollars or be imprisoned * * * "
The liquor was procured by appellant, carried upon his person, and retained by him until the bottle was passed to his companions to drink. There is no theory upon which Averill could have been indicted and convicted of bootlegging. The most that can be said is that he assisted, to the extent of telling Hurley where to stop. He, therefore, was not an accomplice. Whether Hurley was or was not an accomplice is immaterial.
II. A motion was made, at the close of the State's case, for a directed verdict. The motion was based upon the alleged insufficiency of the testimony to convict. T...
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