State v. Caringello
| Decision Date | 24 October 1939 |
| Docket Number | 44862. |
| Parties | STATE v. CARINGELLO. |
| Court | Iowa Supreme Court |
Appeal from District Court, Jasper County; Frank Bechly, Judge.
The defendant was tried and convicted on a county attorney's information charging him with the illegal possession of intoxicating liquors, from which judgment of conviction he has appealed.
Affirmed.
Evidence supported conviction of illegal possession of intoxicating liquors.
James E. O'Brien, of Des Moines, for appellant.
Fred D Everett, Atty. Gen., Jens Grothe, Asst. Atty. Gen., and Luther M. Carr, Co. Atty., of Newton, for the State.
The defendant and his wife had been occupants, for about two weeks, of quarters on the second floor of a private house in Kellogg, in the possession of an aunt of the defendant's wife. The aunt, who was unmarried, lived in the two east rooms and the northwest room downstairs. The quarters of the defendant and wife consisted of the southeast room upstairs which was used as a bedroom and for general occupancy. Connected with this room, by a door, was the southwest room. In this room, at the time in question, were some articles of men's and women's wearing apparel, hanging from a rope stretched across the room. No one else occupied the upstairs. On the evening of February 4, 1939, a number of peace officers of the county searched these premises. As they approached the house one McBroom was seen to leave the yard about the house, and, on being pursued, drew from his pockets two full bottles of alcohol and threw them away. These were recovered by the officers. As a witness for the state, he testified that the defendant had sold and delivered these two bottles of liquor to him, in defendant's room, for $1.70. The aunt testified that McBroom had just left the house as the officers came, and that he and the defendant had previously left her room, and she thought had gone upstairs. In the southwest room, upstairs, behind the line of clothes the officers found two full cases of bottled alcohol, and a partly filled case of bottled whiskey-ninety-seven bottles in all. The aunt testified that the defendant had previously told her that this liquor was his, and that he had brought it from Illinois, and that she told him he had better get it out of the house. There were no Iowa liquor seals on any of the liquor. The defendant was not a witness, and there was no contradiction of the above stated testimony.
The information alleged that the defendant, on May 2, 1932, had entered a plea of guilty, in the United States Court for the Southern District of Iowa, to a charge of illegal transportation of intoxicating liquor, as defined in Sec. 3, Title 2 of the National Prohibition Act, 41 Stat. 308, 27 U.S.C.A. § 12, and that judgment had been entered against him. The information also alleged that, on April 30, 1936, the defendant had entered a plea of guilty, in the same court, to a charge of illegal transportation of non-tax distilled spirits under Section 1152a of Title 26 of the United States Code Annotated, on which judgment had been entered against him. The record shows no objection to the reading of this information to the jury, nor to the county attorney's reference thereto in his opening statement to the jury.
When the state offered certified copies of the indictments, arraignments, pleas of guilty and judgments, in the two federal actions, being Exhibits Numbers 7, 8, 9 and 10, objections were made by the defendant. The state then withdrew the offer of Exhibits Numbers 7 and 8, and the court overruled the objections to the other two exhibits. The state then sought, by examination of a federal officer in the Alcohol Tax Unit, to identify the defendant as the person charged in the second indictment. Objections were sustained to the questions and to strike the answers, in large part. The following proceedings were then had:
" Mr. Carr: No further evidence for the State.
If the Court please, at this time because of a misunderstanding between the Federal agent, Mr. Brock and myself that wasn't discovered until about nine o'clock this morning, the State withdraws the offer of Exhibits No. " 9" and No. " 10", and withdraws from the jury all evidence or statements in the indictment with reference to previous offenses, and ask the Court to fully instruct the jury to disregard such statements, evidence and exhibits.
The Court: Ladies and gentlemen of the jury, in arriving at your verdict in this case you will not consider for any purpose any statements in the opening statements or any questions asked or offers of evidence made with relation to prior offenses of the defendant in the U.S. District Court; you are not to consider them for any purpose in arriving at your verdict; they are withdrawn from your consideration entirely, and the case will go to you solely on the question of whether or not the defendant was guilty of illegal possession of intoxicating liquors in this County, about Feb. 4, 1939. Excepted to.
Any further instructions you desire, Mr. Thayer?
Mr. Thayer: I have a request for two instructions I have sent down to have filed with the Clerk; nothing on this line, however."
The court also gave the following instruction to the jury: " It is the duty of the Court to determine the law and determine what evidence is admissible for your consideration; and you will disregard all evidence excluded or stricken from the record on motion during the progress of the trial of this case, and you must give the same no consideration in arriving at your verdict."
The only assignments of error argued by the defendant pertained to the alleged misconduct of the county attorney in seeking to, and placing before the jury, matters in connection with the two federal offenses.
We have carefully read the record and it is our judgment that the...
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