State v. Doe

• Decision Date: 05 March 1940
• Docket Number: 44982.
• Citation: 290 N.W. 518,227 Iowa 1215
• Parties: STATE v. DOE et al.
• Court: Iowa Supreme Court

290 N.W. 518

227 Iowa 1215

STATE v. DOE et al.

No. 44982.

Supreme Court of Iowa.

March 5, 1940

Appeal from District Court, Black Hawk County; R. W. Hasner, Judge.

Action to condemn certain machines as gambling devices. From order of condemnation the claimant, C. O. Fouts, appeals.

Affirmed.

Walter F. Maley, of Des Moines, and Geo. D. Harris, of Waterloo, for appellant.

Fred D. Everett, Atty. Gen., Jens Grothe, Asst. Atty. Gen., and Burr C. Towne, Co. Atty., and Paul L. Kildee, Asst. Co. Atty., both of Waterloo, for appellee.

HALE Justice.

This is search warrant proceeding under chapter 617 of the 1935 Code of Iowa (section 13441-g1 et seq.). The claimant, C. O Fouts, by what is termed an answer of claimant, alleges various grounds attacking the validity of the proceedings and asking for the return of the articles seized. The action was begun in the municipal court of Waterloo and from a judgment of that court declaring forfeiture of part of the property seized, to wit, 83 slot machines and 148 punch boards, as gambling devices, appeal was had to the district court, where the judgment of the municipal court was affirmed, and appeal then taken to this court.

On April 7, 1938, S. R. Quealy, in the employ of the state department of justice, filed information with Judge Sager of the municipal court of Waterloo, asking that search warrant issue for the search of premises originally described in the information as 610 Bluff street, Waterloo, Iowa. Warrant was issued as prayed. Before search the information and warrant were amended changing the description of the premises to " rear of 403 West Fourth Street." The information was verified, and again verified after the change. The time of the first application was shortly after 5 o'clock in the evening, after the office of the clerk of the municipal court was closed. George J. Sager, judge of the municipal court, was in the building and swore and examined Quealy, and afterwards, at the judge's residence, swore him to the amended information. The clerk's office being closed, the magistrate put the information in his pocket and kept it in his possession until the following morning when it was delivered to the clerk and stamped " Filed" at 9:10 a. m., April 8, 1938. There was no seal on the information or the warrant. The defendant named in the warrant was " John Doe and Certain Gambling Devices." In the information, however, the defendant was merely " Certain Gambling Devices." No search was made at 610 Bluff street, but at the second place named, 403 West Fourth street, a large number of devices were found. The information in the case states that Quealy " has good reason to believe and does believe that certain Gambling Devices to-wit: Cards, Dice, Faro, Roulette Tables, and other devices, are in said County, in the State of Iowa, in the building" at the address referred to, the same " being a gambling house resorted to for the purpose of playing at games of chance for money and other valuable articles." The search warrant is in the usual form and the return thereon certifies the execution of the warrant and the seizure of various articles described as being " gambling devices." The testimony shows that Quealy did not know the name of the owner of the premises until after the commencement of the raid. Notice was posted on the building, and on hearing in the municipal court the claimant C. O. Fouts filed what he terms an answer, setting out some thirty objections to the proceedings and asking the annulment of the information, search warrant, notice of seizure and the seizure itself, and for the return of the articles seized. On May 18, 1938, on trial, evidence was heard and the State asked leave to amend the search warrant by affixing the seal of the municipal court, which motion was overruled. Judgment of the court on June 20, 1938, directed forfeiture of the slot machines and punch boards and released the other articles. On appeal to the district court the cause was submitted on the evidence taken in the municipal court, and on such appeal the claimant interposed some fifteen grounds of error. The district court affirmed the judgment of the municipal court, and from such affirmance appeal is taken to this court.

The first objection by appellant to the action of the court is that the proceedings were initiated by search warrant without the seal of the court, and in support of his claim that the search warrant is therefore a nullity appellant cites a number of cases from other jurisdictions, and Foss v. Isett, 4 G.Greene 76, 61 Am.Dec. 117. The rules of the different states vary to such an extent that it is difficult to say that there is any fixed rule, but in this state, since the decision in the Foss case, the court has often held that lack of a seal does not invalidate proceedings. One of the more recent cases is Ames Evening Times v. Ames Weekly Tribune, 183 Iowa 1188, 168 N.W. 106, 107, where the court says: " If the statute creating the office and defining the duties of the officer does not require him to attest his signature, by a seal, then the failure to use the seal does not affect the validity of the act."

A search warrant is not issued by the clerk of the court but by the magistrate. See section 13441-g5 of the 1935 Code (now section 13441.05, 1939 Code). In the next section (section 13441.06, Code 1939, section 13441-g6, Code 1935) there is a form for a warrant in which no requirement for seal is indicated.

To the same effect as the Ames case, see Magoon v. Gillett, 54 Iowa 54, 6 N.W. 131; Rindskoff v. Malone, 9 Iowa 540, 74 Am.Dec. 367; Murdough v. McPherrin, 49 Iowa 479; Hallett v. Chicago & Northwestern R. Co., 22 Iowa 259, 92 Am.Dec. 393, and cases cited therein; 16 Corpus Juris, p. 310, sec. 551. Magoon v. Gillett, supra, overrules the Foss case. In Rindskoff v. Malone, supra, an amendment was permitted, as was also done in Murdough v. McPherrin and Hallett v. Chicago and Northwestern R. Co., supra.

We do not think the lack of seal in a warrant issued by the magistrate makes invalid the proceedings.

Appellant also insists that there can be no legal issuance of a search warrant until the filing of the information in the office of the clerk of the court. Cases cited by the appellant are under statutes of other states, but our statute (section 13441-g4, Code 1935) requires filing before a magistrate of written information, and such filing would be sufficient whether or not marked filed. See Bedford v. Supervisors, 162 Iowa 588, 144 N.W. 301; Peterson v. Barnett, 213 Iowa 514, 239 N.W. 77; Hartley v. Board of Supervisors, 179 Iowa 814, 162 N.W. 48, and cases cited.

Appellant objects to the description of the seized property in the information and search warrant. The provision relative to description in the statute (section 13441-g4, Code 1935) requires that the information shall describe with reasonable certainty the property sought to be seized. The Constitution, art. I, sec. 8, provides that the warrant shall issue on probable cause supported by oath or affirmation particularly describing the place to be searched and things to be seized. We think the description was sufficient. See State v. Moore, 125 Iowa 749, 101 N.W. 732, and cases cited therein; State v. Thompson, 44 Iowa 399.

Section 13441-g22 of the Code 1935, provides that: " When any property shall have been seized by virtue of any such warrant, the same shall not be discharged or returned to any person claiming the same, by reason of any alleged insufficiency of description in the warrant, but the claimant shall only have a right to be heard on the merits of the case."

Nor do we think that there was error, as claimed by appellant, because the fictitious name of John Doe was used in designating the defendant. This question was raised in the recent case of Krueger v. Municipal Court of Sioux City, 223 Iowa 1363, 275 N.W. 122, 125.We quote from that case: " Section 13441-g5 provides that the search warrant shall be directed to any peace officer in the county, ‘ commanding him forthwith to search the person or place named for the property specified, and bring said property before him.’ * * * Neither of these statutes requires that any person be named or described in a search warrant, unless such person is to be searched; or unless he is known to be in possession of the premises or property to be searched, in which case, the information shall name or describe him. It is apparent from the record in this case that the search warrant here involved was not issued for the purpose of searching a person. Under section 13441-g4 it was not necessary that the information describe the person in charge of the premises and property, unless he was known; and, under section 13441-g5, it was not necessary that any person be named in the search warrant, unless he was to be searched. Both the information and the search warrant sufficiently described the premises to be searched. The name ‘ John Doe’ in the information and search warrant was merely surplusage, and could in no way affect the validity of the search warrant, as far as the premises were concerned." And see cases therein cited.

Appellant claims error because neither the information nor the search warrant were offered or admitted in evidence, nor were any of the devices seized under the warrant. Appellant cites as authority State v. Kingsbury, 191 Iowa 743, 183 N.W. 325.In that case certain liquors seized were offered in evidence, but the State failed to show that they were the liquors sold by defendant and that they were in the same condition as when seized. Other cases cited from other jurisdictions are not in point. There was no necessity of introducing in this proceeding the property seized, for the reason that the appellant in his answer...