State v. Gillam

• Decision Date: 12 November 1941
• Docket Number: 45729.
• Citation: 300 N.W. 567,230 Iowa 1287
• Parties: STATE v. GILLAM.
• Court: Iowa Supreme Court

300 N.W. 567

230 Iowa 1287

STATE v. GILLAM.

No. 45729.

Supreme Court of Iowa.

November 12, 1941

Appeal from District Court, Johnson County; Jas. P. Gaffney, Judge.

Defendant was tried for maintaining a liquor nuisance. From a judgment on verdict of guilty, he appeals.

Affirmed.

Edward L. O'Connor, of Des Moines, for appellant.

John M. Rankin, Atty. Gen., Jens Grothe, Asst. Atty. Gen., and Clair E. Hamilton, Sp. Asst. Co. Atty. of Iowa City, for appellee.

SAGER Justice.

This is an appeal from a second trial. A jury at the November, 1940 term of the district court disagreed seven to five. A search warrant was issued on July 18, 1939, signed by the county attorney on information and belief which fact forms the basis for a large part of appellant's complaint. Under the authority of this warrant appellant's tavern was searched and something over twenty-two quarts of liquor in different sized containers were seized. There were also found four small glasses described as " shot" or whiskey glasses. Appellant argues that the search warrant not being based on probable cause was illegally issued. This may be conceded. Burtch v. Zeuch, 200 Iowa 49, 202 N.W 542, 39 A.L.R. 134; State v. Friend, 206 Iowa 615 220 N.W. 59; Krueger v. Municipal Court, 223 Iowa 1363, 275 N.W. 122; State v. Doe, 227 Iowa 1215, 290 N.W. 518.

From this appellant proceeds to the contention that the court erred in overruling his motion to quash the evidence thus illegally obtained. He recognizes that under the doctrine of State v. Tonn, 195 Iowa 94, 191 N.W. 530, and like cases, we have adopted the rule that evidence is not inadmissible against the accused in a criminal case because illegally obtained. Our rule differs from that prevailing in the federal courts and in some state jurisdictions. But which rule is the better we are not called upon to decide now. The search warrant was issued in July, 1939, the indictment returned September 20, 1939, and the case went to trial in the November, 1940, term without a motion to quash or suppress this evidence being made. It was not until March 11, 1941, just prior to the second trial, that such motion was presented. We think that appellant's application was not seasonably made; and that he waived his right (if he had it) to suppress this evidence. As bearing somewhat on the question, see Dunn v. United States, 10 Cir., 98 F.2d 119, 117 A.L.R. 1302.

Appellant contends that the court erred in overruling his motion for a new trial-this based on the proposition that he had no fair and impartial trial because Murray, one of the officers who took part in the search, was permitted to testify that punchboards were found on the back bar. Whether this would in any event have been prejudicial error need not be determined. The prompt and emphatic comment of the trial court to the effect that the appellant was not on trial for the violation of the punchboard law and that the jury give the matter no attention, removed any possibility of error. The same may be said with reference to testimony of the searchers that they found slot machines. Here again the trial court told the jury to give this no consideration. The court went farther. In terms crisp almost to the point of asperity the trial court directed counsel for the state to confine his inquiries to the subject matter of the case. See State v. Caringello, 227 Iowa 305, 288 N.W. 80.

There is no merit in appellant's claim that the state failed to establish the corpus delicti of the offense. This argument proceeds on the theory that the liquor seized was state-labeled and consequently, legally possessed. This may be conceded without admitting error. There was evidence from which the jury could have found that the appellant actually sold whiskey. It is not argued nor could it be, that liquor lawfully possessed might be vended over a tavern bar. We do not overlook his denial but a decision on the question of fact was for the jury.

Appellant complains that there was error in admitting evidence of the so-called whiskey glasses and the testimony with reference thereto. While the evidence is not very clear as to the size of these " shot" glasses they were conveniently located back of and under the bar. To accept the various lawful uses suggested by appellant to which they could be put as an excuse for their presence in the tavern requires a lack of sophistication to which we do not confess. Under this record we cannot say that the jury was wrong in its finding (if it did find) that these were used or intended to be used by appellant in his intent to violate the law.

Appellant insists that the court erred in giving instructions No. 10 and No. 11. In instruction No. 10 the jury was instructed " that the possessor of intoxicating liquors may show in defense that the liquors found in his possession were sold to him legally * * * the burden is upon the defendant to show by the preponderance of the evidence this defense, and if he has established this defense by a preponderance of the evidence, and the further fact that he held * * * the intoxicating liquors * * * for his own use, then you should find the defendant not guilty." Instruction No. 11 defined the burden of proof, and what was meant by weight of evidence. Appellant cites in support of his argument here State v. Wagner, 207 Iowa 224, 222 N.W. 407, 61 A.L.R. 882; State v. Taylor, 213 Iowa 67, 238 N.W. 457; State v. Grattan, 218 Iowa 889, 256 N.W. 273; Hoover v. Haggard, 219 Iowa 1232, 260 N.W. 540; State v. Sigman, 220 Iowa 146, 261 N.W. 538; and Tallmon v. Larson, 226 Iowa 564, 284 N.W. 367. None of these are in point. The other citations do not involve section 1966.2, 1939 Code, which had its inception in section 2, chapter 42, laws of the Forty-first General Assembly. Most were decided before this law was passed.

It is insisted by appellant that the court erred in giving these instructions (Nos. 10 and 11) because the court did not tell the jury that the burden of proof on the whole case rested on the state to prove the guilt of appellant beyond a reasonable doubt. This point might be well taken if these instructions stood alone, but taking the court's instructions as a whole, there was laid upon the state its proper burden of proof.

Appellant's complaint that the court's instruction permitting the jury to convict the appellant if they found he kept for sale intoxicating liquor " at any place" is hypercritical and is like one...