State v. Higgins

• Decision Date: 10 May 1921
• Docket Number: No. 33668.,33668.
• Citation: 192 Iowa 201,182 N.W. 887
• Parties: STATE v. HIGGINS.
• Court: Iowa Supreme Court

192 Iowa 201

182 N.W. 887

STATE

v.HIGGINS.

No. 33668.

Supreme Court of Iowa.

May 10, 1921.

Appeal from District Court, Polk County; Lester L. Thompson, Judge.

The defendant was indicted for maintaining a liquor nuisance, and upon trial was convicted. He appeals. Affirmed.Clarke & Cosson, of Des Moines, for appellant.

Ben J. Gibson, Atty. Gen., B. J. Flick, Asst. Atty. Gen., of Bedford, and A. G. Rippey, Co. Atty., of Des Moines, for the State.

FAVILLE, J.

The appellant was indicted by the grand jury of Polk county for maintaining a liquor nuisance. During the trial, it was shown that he was the manager of a drug store that was owned by his wife. He had full charge of the business and hired the employees. A witness for the state purchased at the store from these employees, at a time when the appellant was present, different kinds of liquors. The drug store was also searched under a search warrant, and certain liquors therein found were seized and taken. Upon the trial of the case, a chemist testified in regard to the liquor so taken. As we gather it from the record, the liquor so found was of four different classes. One of these is what is known as “denatured alcohol,” which the chemist described as being grain alcohol with about 10 per cent. of wood alcohol added to it, and which he testified would be poisonous and could not be used as a beverage. He said that it was used for automobile radiators and as a cleansing agent, and that it was not used as an intoxicating liquor. One kind was in a bottle which was labeled “Beef, Iron and Wine,” of which no chemical examination was made and no testimony offered as to its contents. Another bottle was described by the chemist as being “Jamaica Ginger,” ordinarily called “Jack.” The chemist testified that it contained about 29.6 per cent. alcohol and a weak tincture of ginger, and that it was intoxicating in its character. He also testified that it was supposed to be used for medicinal purposes and that it is a compound found in the United States Pharmacopœia.

A witness also testified that he procured certain liquor from the store by asking for alcohol and asked the clerk to put orange juice or lemon juice on it, as a flavor, and that he did so. On analysis this was found to contain alcohol and to be intoxicating, and that it did not contain any wood alcohol. The clerk denies that any such sale was made to the witness. There was a square conflict in the evidence as to whether the purchases were made as claimed.

[1] I. Complaint is made of the instructions that were given to the jury. We are confronted at once with the fact that the record fails to show that any exceptions were taken to the instructions, as required by chapter 24 of the Acts of the Thirty-Seventh General Assembly. Said act is as follows:

“Either party may take and file exceptions to the instructions of the court or any part of the instructions given or to the refusal to give any instructions as requested within five days after the verdict in the cause is filed or within such further time as the court may allow and may include the same or any part thereof in a motion for a new trial, but all such exceptions shall specify the part of the instructions as excepted to, or of the instructions asked and refused and objected to, and the grounds of such objections.”

The verdict was returned on the 8th day of April, 1920. More than five days later, to wit, April 17, 1920, a motion for a new trial was filed. On appeal, it is now urged that the court erred in giving one instruction to which no exception was taken at that time and to which no reference was made in any way in this motion for a new trial. It is obvious that unless we are to utterly ignore the plain provisions of this statute, we cannot consider the alleged errors in any of these instructions upon this record. We are cited to section 5462 of the Code, which provides:

“The Supreme Court must examine the record, * * * and render such judgment on the record as the law demands; it may affirm, reverse, or modify the judgment, or render such judgment as the district court should have done, or order a new trial.”

It is contended that the appellant has been denied a fair and impartial trial and that under this statute we should reverse because thereof. It is claimed that such have been our holdings.

In State v. Schwab, 112 Iowa, 666, 84 N. W. 944, we said:

“Certainly a criminal defendant may waive error on appeal. He does so in every instance where an exception is not taken below.”

In State v. Barr, 123 Iowa, 139, 98 N. W. 595, we said:

“We know of no reason why counsel in a criminal case should not make his objections as specific and definite as is required in a civil case, in order to raise a question of law for consideration upon appeal.”

In State v. Burns, 181 Iowa, 1098, 165 N. W. 346, we said:

“He has, however, a fair and impartial trial when opportunity is given to him to object and except to what is done to his prejudice upon the trial.”

Where a defendant is represented by counsel in the trial of a case and proceeds to trial and no exceptions are taken to the instructions, as required by the statute, we cannot consider them on review. Counsel for the appellant urge, however, that we should regard these alleged errors on the broader proposition that it appears on the entire record that the appellant has not had a fair trial, and therefore we should reverse, even though no specific rulings have been properly objected to and though no proper exceptions were preserved.

In the Barr Case, we reversed because upon the whole case it appeared that the defendant did not have a fair trial, in that he was forced to go to trial with new counsel without an opportunity to prepare. We said:

“We reverse, * * * therefore, not on any particular ruling of the court, but rather on the general ground that the verdict does not appear to have been the result of a fair trial.”

In the Burns Case, we also reversed upon the theory that the defendant had been denied a fair trial, because where the defendant was charged with carrying concealed weapons, there was a failure to charge or prove that he did not at that time have a permit to go armed, and therefore one of the essential elements of the offense was utterly lacking. No such situation is presented in the instant case. Appellant was represented by counsel, and...