State v. Hillman

• Decision Date: 25 June 1925
• Docket Number: 36693
• Citation: 204 N.W. 248,200 Iowa 320
• Parties: STATE OF IOWA, Appellee, v. GEORGE HILLMAN, Appellant
• Court: Iowa Supreme Court

204 N.W. 248

200 Iowa 320

STATE OF IOWA, Appellee, v. GEORGE HILLMAN, Appellant

No. 36693

Supreme Court of Iowa, Des Moines

June 25, 1925

Appeal from Fayette District Court.--JAMES D. COONEY, Judge.

DEFENDANT was indicted for the crime of bootlegging. To such indictment he pleaded not guilty. Upon trial had, the jury returned a verdict of guilty. From judgment entered thereon, he has appealed.

Affirmed.

F. L McAvinchey and J. W. Kintzinger, for appellant.

Ben J Gibson, Attorney-general, and Neill Garrett, Assistant Attorney-general, for appellee.

EVANS J. FAVILLE, C. J., and ARTHUR and ALBERT, JJ., concur.

OPINION

EVANS, J.

I.

The indictment was rendered against the defendant on September 11, 1924. He was arraigned on the same day, and appeared by counsel. The court set the case for trial immediately following the civil cases. On September 19th, the case was reached for trial, and called. Thereupon the defendant, through his counsel, asked for a postponement of the trial for one day, in order to enable him to call his witnesses and to call associate counsel. This request was denied, and the case proceeded to immediate trial. Several of the grounds of reversal are predicated upon this ruling by the court.

The propriety of the ruling was peculiarly within the discretion of the court. In view of the fact that the case had not been assigned for trial upon any fixed date, as provided by Section 3659, Code of 1897, we should have been better satisfied with the record if the postponement had been granted. It appears, however, that, at the time of arraignment, on September 11th, the court advised defendant and his counsel that September 19th would approximate the time when the case would be reached and called for trial. The motion did not purport to show or declare any diligence in the preparation for trial. Nor did it show or declare that the defendant had any witnesses which he could not procure on September 19th; nor indeed did it show or declare that he had any witnesses at all. Nor did the motion show or declare that the associate counsel could not be procured in time for the trial. Telephone and automobile were available to him. So far as appears, no use or attempted use of either was made. Assuming that, in the stress of the moment, counsel may have overlooked the defects of his motion, he had a later opportunity, by motion for a new trial, to have made a full showing to the court of the disadvantages he had suffered by reason of his inability to procure his witnesses or his associate counsel. No such showing was offered.

Nothing appears in the record which would justify us in saying that the trial court abused its discretion in refusing the postponement.

II. The alleged errors which arise legitimately upon the record are very few; though the brief of counsel argues very many. That is to say, the brief goes beyond the record, and discusses many questions which were not presented or considered below, either on objection, exception, or otherwise.

At the close of the State's evidence, the defendant moved for a directed verdict for want of sufficient proof. The principal witness for the State was Winterowd. He testified that, in March preceding the indictment, he and two companions entered a cafe and ordered a meal; that the defendant was present at the same place; that the witness secretly interviewed him and offered to purchase intoxicating liquor from him; that the defendant thereupon left the cafe, and shortly thereafter returned, and seated himself at the same table with Winterowd and his companions, and there "slipped" the bottle of intoxicating liquor under the table to Winterowd, whereupon Winterowd distributed the liquor to his companions and himself. This evidence was sufficient, as a matter of law, to warrant the overruling of the defendant's motion. Stress is laid by appellant upon the fact that the two companions testified, as witnesses of the State, to the effect that they did not hear the conversation between Winterowd and the defendant, and that they did not see the defendant produce the...