State v. Friend

• Decision Date: 26 June 1928
• Docket Number: 38488
• Citation: 220 N.W. 59,206 Iowa 615
• Parties: STATE OF IOWA, Appellee, v. HARDY FRIEND, Appellant
• Court: Iowa Supreme Court

220 N.W. 59

206 Iowa 615

STATE OF IOWA, Appellee, v. HARDY FRIEND, Appellant

No. 38488

Supreme Court of Iowa, Des Moines

June 26, 1928

REHEARING DENIED SEPTEMBER 28, 1928.

Appeal from Marshall District Court.--B. F. CUMMINGS, Judge.

Trial on an indictment for maintaining a liquor nuisance. The jury returned a verdict of guilty, and thereupon judgment was entered, imposing a fine of $ 1,000 and costs, including county attorney's fee and imprisonment in the county jail of Marshall County, Iowa, for a period of one year. Defendant appeals.

Affirmed.

F. E Northup, for appellant.

John Fletcher, Attorney-general, and Neill Garrett, Assistant Attorney-general, for appellee.

DE GRAFF, J. STEVENS, C. J., and ALBERT, MORLING, and WAGNER JJ., concur.

OPINION

DE GRAFF, J.

The appellant is a resident of Marshalltown, Iowa, unmarried, and resides with his mother in her home at 307 North Center Street, Marshalltown, Iowa.

On the 31st day of December, 1926, a liquor search warrant was issued from the municipal court of the city of Marshalltown, signed by B. O. Tankersley, Judge, directing any peace officer of Marshall County, Iowa, to search certain premises described, to wit:

"The dwelling house of Mrs. A. M. Friend at No. 307 North Center Street, Marshalltown, Iowa, occupied by Hardy Friend; also the automobile owned and operated by Hardy Friend."

Under said search warrant, a search of the premises was made, and there was found certain intoxicating liquor, consisting of four gallon cans of alcohol, secreted in the bottom of an old upright piano, and two bottles of whisky, concealed under the framework of a dining-room table.

Upon the trial of this cause, the appellant testified that, when he moved back to Marshalltown from Albert Lea, Minnesota, about the year 1922, he brought liquor (alcohol and whisky) back with him; that he acquired the alcohol and whisky shortly before the country went dry; that it was sent by freight, with other goods; that he put the liquor in the cellar, and turned it over to his father, who was then living; that he went back to Minnesota, and after fourteen months' absence, returned to Marshalltown; that he did not know that these bottles and four gallons of alcohol were concealed in the bottom of the piano, or that the whisky was concealed under the table; that he did not have a drop of liquor on the 31st day of December, 1926, in that home. He further testified:

"I knew that my mother and father had had this stuff, but I didn't know what they had ever done with it, because they had never told me; but I made up my mind, during the hour or hour and a half they [the officers] were there, if anything was found, that I would lay claim to it, and protect my mother. I wouldn't allow that she take the blame. I laid claim to it to shield mother. It is not mine, and I did not put it there. I did not take any liquor to my mother's home except that I brought down from Albert Lea. I didn't own, possess, or keep this liquor. I did not put those two bottles underneath the table, and do not know who put them there."

The captain of the police force of Marshalltown who conducted the search testified:

"I observed a lot of empty bottles and cans about the place. There were probably three dozen or more empty bottles in a closet off the kitchen, and also a small funnel there. The other bottles were in a north room of the basement, in two crates. There were probably 150 of them altogether, in sizes of pint and one-half pint bottles, but they were empty. There were some empty cans there. Three or four of them smelled like alcohol. Friend [the defendant] said he didn't have anything, but when we opened the piano, he said: 'They have found it.' He said in the police station to Officer Piper something about being hard to catch, and Piper replied: 'Yes, you were. I am willing to shake hands on that,' and he said: 'That is damn good stuff. You better get yourselves some of it.'"

Officer Piper testified that, when the search was being conducted, the defendant came downstairs, and said: "You have found it; it is mine," and that he then went to the dining room, and said, "Mother, they have found it."

This, in brief, is the material evidence submitted to the jury, and it is ample to sustain the verdict returned.

I. One vital question is involved on this appeal. This question has to do with the complaint made by the appellant that the issuance of the search warrant by the magistrate was violative of constitutional provision, and further, that the evidence secured through said search warrant was inadmissible upon the trial of this cause. Neither of these contentions is well based. The magistrate issuing the warrant recited in the warrant itself:

"And the court finds that from the evidence that there is, in fact, sufficient ground and reason that a search warrant issue for said premises and car."

Nor may it be said that the verified information filed by a resident of Marshall County, upon which the search warrant issued, is an affidavit of belief only, since it is therein recited, after describing particularly the premises to be searched, and naming particularly the liquors to be seized:

"And that said liquors are owned and kept by above named defendant, or by another with his consent, and that said liquors are intended by him to be sold or used in violation of law, or had been purchased or procured as the result of solicitation, or had been manufactured or transported in violation of law."

It is true that, under constitutional provision, the right to issue a search warrant rests upon facts showing probable cause, as distinguished from an informant's belief or conclusions existing at the time the showing is made.

"No warrant shall issue but on probable cause, supported by oath or affirmation." Constitution of Iowa, Article I, Section 8.

As said in Burtch v. Zeuch, 200 Iowa 49, 39 A.L.R. 1349, 202 N.W. 542:

"It is the quite universal holding of the courts of last resort of the several states of the American union, and of the Federal courts of the United States, that an information based upon mere belief and unsupported by sworn facts is not a basis for the issuance of a legal search warrant."

It is further held in the Burtch case, supra:

"We will not presume that the issuing magistrate failed to respect constitutional and statutory provisions. On the contrary, we recognize the presumption that sworn...