State v. La Grange

Decision Date09 October 1896
Citation68 N.W. 557,99 Iowa 10
PartiesSTATE v. LA GRANGE.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from district court, Benton county; George W. Burnham, Judge.

The defendant was convicted of the crime of nuisance, committed by establishing and maintaining a place in which he kept for sale and sold intoxicating liquors in violation of law. From the judgment, which required him to pay a fine of $500, an attorney's fee, and costs, he appeals. Reversed.Matt Gaasch, Cato Sells, and Tom H. Milner, for appellant.

Milton Remley, Atty. Gen., for the State.

ROBINSON, J.

The defendant was a registered pharmacist during the time he is alleged to have committed the crime in question, but there is evidence which tends to show that he made sales of intoxicating liquors in violation of law. The questions we find it necessary to determine arise on a motion for a new trial which was filed by the defendant, and overruled.

1. The appellant complains of several remarks alleged to have been made by the court during the trial, and claimed to have been prejudicial. The state objects to a consideration of the remarks on their merits, because they were not properly made of record. They are shown only by an affidavit attached to the motion for a new trial. We held in State v. Whalen (decided at the present term) 68 N. W. 554, that an affidavit attached to a motion for a new trial becomes a part of the record by filing, but it does not follow that an affidavit which is thus made a part of the record is competent to show a material fact in the case. The court necessarily had knowledge of the remarks in question, and the proper method of making them of record was by bill of exceptions duly signed by the judge, or, in case of his refusal to sign it, by two or more attorneys or officers of the court, or disinterested bystanders, who should have sworn to it, and it should have been filed, and thus made a part of the record. Code, § 4483. That was not done. We held in Rayburn v. Railway Co., 74 Iowa, 641, 35 N. W. 606, and 38 N. W. 520, that misconduct of an attorney in presenting a case to the jury, which occurred in the presence of the court, could not be shown by affidavit, and that holding has since been followed. The reason for that rule applies as strongly in this case as in those in which it has heretofore been adopted, and we must hold that the remarks of the court in question are not properly before us for review.

2. It is claimed that the jury and its bailiff were guilty of such misconduct that the verdict should have been set aside. The alleged misconduct is shown by affidavits attached to the motion for a new trial. As the acts of which complaint is made did not occur in the presence of the court or judge, they could not have been certified by the judge, and therefore were properly shown and made of record by means of affidavits filed with the motion for a new trial. The affidavits show that during the deliberations of the jury it sent one of its members to Robert Covert, the bailiff, to ascertain how long it would be obliged to stay in the jury room if it did not agree upon a verdict; that Covert represented to the juror so sent, in the presence of the other jurors, that the judge had told him that they would be obliged to remain until Monday morning unless they sooner agreed, and that they could not agree to disagree. The affidavits further state: That “said bailiff made himself officious in various ways, by advising the jury, and making statements as to what the judge had said as to the merits of the case, and the time said jury would be required to remain in the jury room. That, after the jury had agreed upon a verdict, said Covert told them that he was only joking; that Judge Burnham had not told him that the jury would have to stay until Monday morning unless they sooner agreed.” Each affidavit further states that the affiant would not have agreed to the verdict, had it not been for the representations so made,...

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