State v. Burch
| Decision Date | 21 June 1926 |
| Docket Number | 37089 |
| Citation | 209 N.W. 474,202 Iowa 348 |
| Parties | STATE OF IOWA, Appellee, v. NEWTY C. BURCH, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED OCTOBER 4, 1926.
Appeal fro Marion District Court.--W. S. COOPER, Judge.
The defendant was convicted in the court below of the crime of maintaining a liquor nuisance, and sentenced to one year in the county jail. He appeals.
Affirmed.
Johnson & Teter, for appellant.
Ben J Gibson, Attorney-general, and S. S. Faville, Assistant Attorney-general, for appellee.
STEVENS J. DE GRAFF, C. J., and FAVILLE and VERMILION, JJ., concur.
The defendant was tried and convicted in the court below of the crime of maintaining a liquor nuisance. The court sentenced him to confinement in the county jail for a term of one year. The exceptions argued are numerous, but we deem it necessary to discuss only a part of them.
I. Elmer Hammond, who was one of the judges of election of Knoxville Township at the general election held in Marion County, November 4, 1924, was certified by the judges of election for jury service. This fact was unknown to the defendant and his attorneys, and, apparently, to everyone else connected with the trial of the case, until after the verdict was returned by the jury. Hammond was one of the jurors who heard the case. A new trial was asked, upon the ground that the board did not have authority to certify Hammond as a juror, and that he was not legally a member of the panel. Section 10869, Code of 1924, requires judges of election to certify to the jury list, and that, according to their knowledge and belief, the same contains the name of no person * * *"
Under the former statute, Section 337, Code Supplement, 1913, the fact that a juror served as a judge or clerk of election at the election at which the jury list was selected and certified, was ground for challenge for cause. This provision was omitted from the Code of 1924, and is not included among the grounds enumerated in Section 13830 for challenges to jurors for cause. We will assume that counsel for appellant examined the jurors on their voir dire, and elicited such facts from each of them as he deemed sufficient to enable him to determine their fitness to serve as jurors in the particular case. The juror testified, in his examination after the verdict was returned, that he did not know that his name was on the jury list when it was certified. There is nothing in the record to in any way suggest prejudice to the defendant. It was, of course, the duty of the judges of election to observe carefully the requirements of the statute. So far as anything is shown by the record, appellant might have excused the juror; and we think it may safely be assumed that the right to challenge him, either for cause or peremptorily, was waived. Appellant cannot now complain. Goldthorp v. Goldthorp, 115 Iowa 430, 88 N.W. 944; State v. Pickett, 103 Iowa 714, 73 N.W. 346.
II. A motion for a directed verdict was filed at the close of the evidence for the State, and renewed at the close of all the evidence. The motion was based largely upon the alleged insufficiency of the evidence to justify a conviction. It is true that the record does not disclose direct evidence of sales by appellant of intoxicating liquors, but the circumstances clearly indicate that such was his business and the evidence is abundant to sustain the conviction. A large quantity of alcohol, together with other indicia of the unlawful business, was introduced, and the defendant was observed by the officers who were watching him, to surreptitiously place a bottle filled with alcohol by a post in a dark alley, and was immediately arrested, and the liquor seized. The explanation made by him of his presence in the alley was inconsistent with the testimony of the officers, and he denied placing the bottle by the post. This denial created a conflict in the evidence, which it was the especial province of the jury to determine. Certain exhibits were admitted in evidence over the objection of appellant. The admission of these exhibits is referred to in the motion to direct a verdict, and also assigned as a...
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