State v. Critelli, No. 46798.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtHALE
Citation237 Iowa 1271,24 N.W.2d 113
PartiesSTATE v. CRITELLI.
Decision Date15 November 1946
Docket NumberNo. 46798.

237 Iowa 1271
24 N.W.2d 113

STATE
v.
CRITELLI.

No. 46798.

Supreme Court of Iowa.

Sept. 17, 1946.
Rehearing Denied Nov. 15, 1946.


Appeal from District Court, Polk County; Loy Ladd, Judge.

The defendant, Johnnie Critelli, was indicted, tried, and convicted of the crime of conspiracy. Motion for new trial and exceptions to instructions overruled. Defendant appeals.

Affirmed.

[24 N.W.2d 114]

Charles W. Bowers, Carl S. Missildine, and Milton W. Strickler, all of Des Moines, for appellant.

John M. Rankin, Atty. Gen., Charles H. Scholz, Asst. Atty. Gen., and Vernon Seeburger, County Atty., of Des Moines, for appellee.


HALE, Justice.

The grand jury of Polk county, on September 18, 1944, by indictment, accused Johnnie Critelli (the defendant herein) and twelve others, of the crime of conspiracy, as defined in section 13162 of the Code of 1939, sec. 719.1, Code of 1946, and charged that Johnnie Critelli and the others named, unlawfully conspired together with fraudulent and malicious intent and purpose to do an illegal act injurious to public trade, health, morals or police by illegally selling, keeping for sale, possessing, transporting and trafficking in intoxicating liquors.

To this indictment the defendant, Johnnie Critelli, entered a plea of not guilty and demanded separate trial. Trial was begun on November 15, 1944, the jury was sworn, and some of the witnesses for the prosecution testified, but, for the reason that the assistant county attorney appearing for the state became ill, the jury was discharged before verdict and the cause continued over the term, the defendant objecting. At the January term the case was continued on

[24 N.W.2d 115]

the application of defendant to the March term. On the trial at the March term, 1945, the jury failed to agree. The case was assigned for trial at the May term, 1945; defendant entered a plea of former jeopardy, which was overruled and trial was had resulting in a verdict of guilty. The court overruled defendant's motion for a new trial and exceptions to instructions, and entered sentence, and defendant appeals.

The errors claimed by Critelli, the appellant, are, in the refusal of the court to sustain the plea of former jeopardy, errors in the selection of the jury, in the rulings of the court on admission of portions of the state's evidence, error in the court's instructions, and in the refusal of the court to give appellant's instructions.

The appellant was the owner of an eating place and tavern at 2202 Harding Road in Des Moines. At the same time another tavern was operated at 1200 West Locust Street in Des Moines, under the name of Johnnie's Uptown Cafe. It is claimed by appellant that this place was owned and operated, through employees, by Carmella Critelli, a defendant in the indictment and the wife of appellant. But there is evidence that the receipts for rent were made out to appellant, and that he had a lease for the years 1943 and 1944, and the fixtures and moneys and credits were assessed in appellant's name. The receipts from the Uptown Cafe were deposited in a joint bank account under the name of Johnnie Critelli's Uptown Place, and withdrawn by either the appellant or Carmella. Another defendant, Don Madero, was manager of the Uptown Cafe, and some of the defendants named in the indictment were employees. There is testimony showing sale of intoxicating liquor by the drink to many customers, and there were various raids on these places by police officers, resulting in the seizure of liquor, some in bottles with seals of other states. At one of these raids on the Uptown place the defendant was brought from 2202 Harding Road to open the vault. He was present at other raids, and generally at one or the other of the two taverns.

It is unnecessary to set out in detail the evidence in relation to his participation in the many violations of the liquor laws in connection with various persons named in the indictment as codefendants. Appellant admitted putting liquor sold at his place back of the bar, and that it was sold to customers; that he bought liquor of bootleggers whose names he did not remember, nor did he remember the number of times he bought from them. He helped negotiate the purchase of a truck for one Weathers, and a loan to pay for it, and this truck was afterwards used for the illegal transportation of liquor by one Snell. Sales of liquor were made by Snell, also named in the indictment as a codefendant. Checks, in payment for some of these sales in large amounts, when cashed had appellant's endorsement. These are examples only of some of the evidence tending to show appellant's operations in the illegal liquor traffic, but by no means all. From a reading of the record we are satisfied that the evidence was sufficient to authorize the jury to find that appellant was operating this traffic in connection with other defendants named in the indictment. His own connection therewith, under the evidence, cannot be disputed.

I. The appellant, while of course not admitting the sufficiency of the evidence, directs his main objections to alleged errors of the court in the conduct of the trial. His first assignment of error is the action of the trial court in discharging the jury which had been impaneled and sworn, because of the illness of the assistant county attorney, which he alleges was without legal justification and constituted jeopardy.

The first trial began on November 15, 1944. Edwin S. Thayer, assistant county attorney, had been in charge of the case before the grand jury and prior to its presentation to that body; and, under order of Mr. Kuble, the county attorney, represented the state in the trial in the district court. The jury was impaneled and sworn on November 18. The testimony of several witnesses for the state was taken when Mr. Thayer became seriously ill, the county attorney at the time being at Rochester, Minnesota, for medical examination. On the morning of Monday, November 20, the other assistant county attorneys who had no previous connection with the case, filed a motion for continuance, based on Thayer's

[24 N.W.2d 116]

illness, which motion was resisted by appellant, but the motion was sustained by the court. There can be no doubt of the gravity of the assistant's illness or that he was unable to proceed with the case at that term, or for a long time later. There was evidence, and the other assistant county attorneys testified that they were unable to proceed without such preparation as would carry the case over the term, and they were engaged also in other duties. The appellant suggests that the court could have continued the case for a few days without discharging the jury, but by order of the court the jury had been segregated.

Appellant cites the law as to jeopardy as given in Amendment 5 of the Constitution of the United States: ‘* * * nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb’, and the general definition in Warton's Criminal Law, 12th Ed., Vol. 1, sec. 395: ‘Jeopardy is the peril or danger of life or liberty in which a person is put when he has been regularly and sufficiently charged with the commission of a crime; has been arraigned and pleaded to such charge; has been put upon his trial before a tribunal properly organized and competent to try him for the offense charged, and a jury has been duly impaneled from persons competent to sit on the trial and duly sworn to try the cause, and charged with due deliverance’.

He argues that jeopardy begins when the jury has been impaneled and sworn. However, the common law rule embodied in the United States Constitution above, is not the same as is found in our state constitution. ‘No person shall after acquittal, be tried for the same offence.’ Constitution of Iowa, Art. I, Sec. 12, and the rule found in the Code of 1939, sec. 13807, Code of 1946, sec. 777.20, is as follows: ‘A conviction or acquittal by a judgment upon a verdict shall bar another prosecution for the same offense, notwithstanding a defect in form or substance in the indictment on which the conviction or acquittal took place.’ And as to retrial, section 13913, Code of 1939, sec. 784.4, Code of 1946, provides: ‘In all cases where a jury is discharged or prevented from giving a verdict, except where the defendant is discharged during the progress of the trial, or after submission to it, the cause may be again tried at the same or another term of the court’. The only pleas to the indictment are found in section 13799, Code of 1939, sec. 777.11, Code of 1946: ‘There are but three pleas to the indictment-(1) guilty, (2) not guilty, or (3) of a former judgment of conviction or acquittal of the offense charged.’

Under these provisions of our constitution and the code, we have many times held that the discharge of a jury prior to a verdict of conviction or acquittal is not necessarily a bar to a subsequent trial of an accused under the same indictment. State v. Redman, 17 Iowa 329;State v. Tatman, 59 Iowa 471, 13 N.W. 632;State v. Parker, 66 Iowa 586, 24 N.W. 225;State v. Falconer, 70 Iowa 416, 30 N.W. 655;State v. Pierce, 77 Iowa 245, 42 N.W. 181;State v. Kappen, 191 Iowa 19, 180 N.W. 307;State v. Vaughan, 29 Iowa 286. These cases indicate that under the Iowa rule there must be an acquittal or such action or conduct of the court as amounts to an acquittal to warrant a discharge under the plea of former jeopardy. State v. Redman, supra; State v. Parker, supra; State v. Dickson, 200 Iowa 17, 202 N.W. 225.

There is a marked distinction between the rule laid down by the Iowa constitution, with the code provisions above quoted, and the old common law rule as to jeopardy, but even under jeopardy as defined by the common law we are satisfied that there was no jeopardy in the instant...

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17 practice notes
  • State v. Williams, No. 61228
    • United States
    • United States State Supreme Court of Iowa
    • November 14, 1979
    ...to juror convenience is simply erroneous. Trial courts have the discretion to excuse any juror for proper cause. State v. Critelli, 237 Iowa 1271, 1279-81, 24 N.W.2d 113, 117-18 (1947); § 607.3, The Code 1977. During voir dire, trial court's disposition of requests by veniremen that they be......
  • Tichnell v. State, Nos. 73
    • United States
    • Court of Appeals of Maryland
    • June 10, 1980
    ...Nail v. State, 231 Ark. 70, 328 S.W.2d 836, 841-42 (1959); People v. Howard, 211 Cal. 322, 295 P. 333, 334 (1930); State v. Critelli, 237 Iowa 1271, 24 N.W.2d 113, 118 Tichnell next contends that he was denied a fair and impartial jury trial because a hostile atmosphere was generated (a) by......
  • State v. Olson, No. 49158
    • United States
    • United States State Supreme Court of Iowa
    • November 12, 1957
    ...Iowa 559] must, be proven in this manner. See Weber v. Paul, 241 Iowa 121, 126-127, 40 N.W.2d 8, 11-12, and citations; State v. Critelli, 237 Iowa 1271, 1282, 24 N.W.2d 113, 119, and citations; State v. Davis, 230 Iowa 309, 316, 297 N.W. 274, 277, and citations; Hoeppel v. U. S., 66 App.D.C......
  • State v. Anderson, No. 18350.
    • United States
    • Supreme Court of Connecticut
    • March 2, 2010
    ...ill and substitution of deputy prosecutor was precluded by virtue of deputy prosecutor's conflict with one juror); State v. Critelli, 237 Iowa 1271, 1273, 1278-79, 24 N.W.2d 113 (1946) (trial court properly declared mistrial when prosecutor became ill during trial, no other prosecutor could......
  • Request a trial to view additional results
17 cases
  • State v. Williams, No. 61228
    • United States
    • United States State Supreme Court of Iowa
    • November 14, 1979
    ...to juror convenience is simply erroneous. Trial courts have the discretion to excuse any juror for proper cause. State v. Critelli, 237 Iowa 1271, 1279-81, 24 N.W.2d 113, 117-18 (1947); § 607.3, The Code 1977. During voir dire, trial court's disposition of requests by veniremen that they be......
  • Tichnell v. State, Nos. 73
    • United States
    • Court of Appeals of Maryland
    • June 10, 1980
    ...Nail v. State, 231 Ark. 70, 328 S.W.2d 836, 841-42 (1959); People v. Howard, 211 Cal. 322, 295 P. 333, 334 (1930); State v. Critelli, 237 Iowa 1271, 24 N.W.2d 113, 118 Tichnell next contends that he was denied a fair and impartial jury trial because a hostile atmosphere was generated (a) by......
  • State v. Olson, No. 49158
    • United States
    • United States State Supreme Court of Iowa
    • November 12, 1957
    ...Iowa 559] must, be proven in this manner. See Weber v. Paul, 241 Iowa 121, 126-127, 40 N.W.2d 8, 11-12, and citations; State v. Critelli, 237 Iowa 1271, 1282, 24 N.W.2d 113, 119, and citations; State v. Davis, 230 Iowa 309, 316, 297 N.W. 274, 277, and citations; Hoeppel v. U. S., 66 App.D.C......
  • State v. Anderson, No. 18350.
    • United States
    • Supreme Court of Connecticut
    • March 2, 2010
    ...ill and substitution of deputy prosecutor was precluded by virtue of deputy prosecutor's conflict with one juror); State v. Critelli, 237 Iowa 1271, 1273, 1278-79, 24 N.W.2d 113 (1946) (trial court properly declared mistrial when prosecutor became ill during trial, no other prosecutor could......
  • Request a trial to view additional results

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