State v. Cleaver
| Decision Date | 11 December 1923 |
| Docket Number | No. 35589.,35589. |
| Citation | 196 Iowa 1278,196 N.W. 19 |
| Parties | STATE v. CLEAVER. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Harrison County; Earl Peters, Judge.
The defendant was charged with the crime of bootlegging, in that he did unlawfully keep and carry on his person certain intoxicating liquors with intent to sell the same. To this indictment, the defendant pleaded not guilty. He also pleaded a former acquittal of the crime charged. There was a verdict of guilty and sentence thereon. The defendant has appealed. Affirmed.William P. Welch, of Logan, for appellant.
Ben J. Gibson, Atty. Gen., Neill Garrett, Asst. Atty. Gen., and Roy Havens, Co. Atty., of Logan, for the State.
The assigned grounds of reversal are: (1) An alleged former acquittal; (2) misconduct of the witness Mathieus in violating the order of the court excluding witnesses from the courtroom; (3) misconduct of the county attorney in his closing argument to the jury.
[1] I. Was there a former acquittal? It is made to appear that the witnesses Spencer and Mathieus testified before the grand jury to the purchase from the defendant of certain intoxicating liquor on June 17, 1921, at his place of residence on a farm. The circumstances of the purchase were that the defendant absented himself for a brief time from the witnesses and disappeared in a field some distance from his house and shortly thereafter returned with the desired intoxicating liquor upon his person, which he then and there sold to the witnesses. Upon this testimony, two indictments were returned against him by the grand jury: One as for maintaining a nuisance; and the other as for bootlegging, in that he carried the intoxicating liquor upon his person with intent to sell.
The defendant was arrested under both indictments and put upon trial, the indictment for nuisance being first in the assignment. After the jury was sworn, the county attorney dismissed the nuisance indictment. Thereupon the defendant was put upon trial under the indictment for bootlegging. The defendant moved to quash this indictment on the ground of his former acquittal under the nuisance indictment. His motion was overruled.
His argument is that an allegation in one count of the nuisance indictment to the effect that he sold intoxicating liquor on June 17, 1921, to the named witnesses, was a material allegation of the nuisance indictment, and was therefore necessarily negatived by his acquittal of the nuisance charge, as provided by Code, § 5405; that the two indictments were predicated upon the same testimony and were provable by the same testimony, and by none other. The point is without merit. The material allegation in the bootlegging indictment is that the defendant carried intoxicating liquor upon his person with intent to sell the same. Under the statute, this charges a distinct offense and is not identical with the charge of nuisance as for maintaining a place for the keeping of intoxicating liquors with intent to sell. The defendant could be guilty of bootlegging without being guilty of maintaining a nuisance within the strict meaning of the statute. He could also be guilty of maintaining a nuisance without being guilty of bootlegging. The question is not an open one in this state. State v. Johns, 140 Iowa, 125, 118 N. W. 295. Nor is it an open one in any other jurisdictions as far as we know. Snitkin v. U. S. (C. C. A.) 265 Fed. 501;Hughes v. Commonwealth, 131 Ky. 502, 115 S. W. 744, 31 L. R. A. (N. S.) 693, with note.
[2][3] II....
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