State v. Japone
| Decision Date | 21 June 1926 |
| Docket Number | 37686 |
| Citation | 209 N.W. 468,202 Iowa 450 |
| Parties | STATE OF IOWA, Appellee, v. SAM JAPONE, Appellant. STATE OF IOWA, Appellee, v. BEN JAPONE, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED OCTOBER 22, 1926.
Appeal from Linn District Court.--JOHN T. MOFFIT, Judge.
Defendants Sam Japone and Ben Japone, appeal from judgments of conviction on separate informations against them for liquor nuisance.
Affirmed.
Carl F. Jordan, for appellants.
Ben J. Gibson, Attorney-general, and Neill Garrett, Assistant Attorney-general, for appellee.
MORLING, J. DE GRAFF, C. J., and STEVENS, FAVILLE, and VERMILION, JJ., concur.
The only evidence in the case is that given by the sheriff and by a police officer. The sheriff testifies that he had a call from a man living in that vicinity, and that, about 9:30 in the morning, he went out on the Lincoln Highway, two miles east of the city limits of Cedar Rapids, to a point where a road--not a main-traveled road--leads off to the left. This road turned again to the right. It was not full width; was the width of the car. There were no fences. From this side road, and about 200 yards from the paving, another road branched off to the left or north, made a loop, and turned back to the first by-road. The vicinity was hilly. The road lay through the timber, and the shrubbery and brush were pretty thick. The place was secluded. About 50 feet off the last mentioned road, down in the hill in the timber, the sheriff found 5 five-gallon cans of alcohol. 50 yards (feet?) farther down the hill, in the same timber, he found 5 other five-gallon cans, planted in the bushes. The cans were concealed, and could not be observed from a place 5 or 10 feet from them. The cans were in pasteboard cartons. There were also 4 empty cartons, from which the cans had been removed. The sheriff says:
"We found several other places in the vicinity where you could see where it looked just as though cans similar to these had been placed, and had been removed."
The sheriff left deputies in charge. The sheriff took 8 of the five-gallon cans to town, left the 2 that were nearest the road, and left the cartons of the 8 in the same position in which he found them. At about 3:30, the sheriff returned to the place, and with the police officer hid in the bushes, where they could observe the liquor. About 5:30, the two defendants drove up in a Marmon car, "to a point exactly opposite where the liquor was planted, * * * 40 feet from the first plant, and the other plant was about 50 feet [yards?] west, beyond that." The sheriff says:
The police officer says that defendants stopped the automobile in this drive, directly opposite the path that led down to the place where this alcohol was; that Sam stood at the automobile, and was looking around, and Ben disappeared in the bushes and the swale, toward the alcohol; that, when Sam observed them, he yelled something in some foreign language, "and seemed to be pretty much agitated, and Ben straightened up very quickly, and seemed rather nervous and agitated, and didn't know which way to turn, until he was told to come where we were." The sheriff says:
"The one who was on the lookout at the top of the hill became very much excited, the minute he saw us, and, as I said, began to talk to the other one very rapidly in Italian, or some other foreign language; and they were both very much excited, and gave that appearance."
The defendants were put under arrest. The officers found in the automobile three or four pint bottles, two or three containing a trace of alcohol, and one of coffee. They also found a piece of cardboard, similar to that of the containers in the bushes. The car had an Illinois license number. Defendants made no explanation of their presence, but stated then or later that they lived in Springfield, Illinois.
I. The prosecutions are by county attorney's informations. It is first claimed that the informations are insufficient because verified on information and belief. The verification is by the county attorney, to the effect that he has made a full and careful investigation of the facts upon which the charge is based, and "that the allegations contained in the above and foregoing information are true, as I verily believe. " Defendants cite People v. Shockley, 311 Ill. 255 (142 N.E. 481). Whatever may be the practice in Illinois, the affidavit conforms to our practice, and is all that can be expected if the statute allowing prosecution by information is to be of any effect. Koch v. District Court, 150 Iowa 151, 129 N.W. 740, and cases cited.
II. It is next objected that the informations are insufficient because they do not negative the existence of a permit (citing People v. Martin, 314 Ill. 110, 145 N.E. 395). Our statute expressly declares that the information need not negative any exceptions. Code of 1924, Section 1952.
III. It is stated that the informations consist of conclusions generally, and not facts. The informations are in the usual form, approved in State v. Dixon, 104 Iowa 741, 74 N.W. 692, and other cases, and are in conformity with the statute.
IV. The informations charge that the defendants did "keep maintain, and use a certain building or place in the city of Cedar Rapids, Linn County, Iowa, for the purpose and with the intent of keeping," etc. After the jury was sworn, the county attorney asked leave to amend by striking out the words "the city of Cedar Rapids." Defendants objected, on the grounds that they were surprised, and that "this amendment is not an amendment in matter of form, but goes to the substance * * * and changes the allegations of the indictment, and forces the defendants to provide proof of not having maintained a liquor nuisance in some place different from the city of Cedar Rapids, where it was formerly alleged they maintained said nuisance." It was objected that to allow the amendment would be in violation of Section 13744, Code of 1924. No effort was made to show that defendants were in fact surprised. The memorandum of testimony attached to the informations stated that one witness named would testify that they located alcohol in cans in bushes or brush near the Lincoln Highway in Linn County, Iowa; that another witness named would testify that he found alcohol planted in a deserted place on a byroad off Lincoln Highway, in Linn County, Iowa; that the witnesses saw these defendants drive up in a Marmon automobile, and go to where the liquor was hidden. The preliminary informations alleged that the nuisance was maintained in Cedar Township, Linn County, Iowa. Defendants' objections were overruled.
A specification of the place of conducting the nuisance, other than to show that it was within the county, and therefore within the jurisdiction of the court, was unnecessary. State v. Arnold, 98 Iowa 253, 67 N.W. 252. If the case had gone to trial on such specification, a conviction could not have been had. State v. Schuler, 109 Iowa 111, 80 N.W. 213; State v. Crogan, 8 Iowa 523; State v. Newland, 7 Iowa 242; State v. Hesner, 55 Iowa 494, 8 N.W. 329. This would be because the place is stated as a matter of local description, and not as venue (State v. Crogan, 8 Iowa 523), or that the particularity is by the information made essential to identity. 1 Greenleaf on Evidence (15th Ed.), Section 65. A particular description may be necessary when abatement is sought. State v. Schuler, 109 Iowa 111, 80 N.W. 213. The court in State v. Verden, 24 Iowa 126, was evenly divided on the question whether, under the then existing statutes, such a variance affected the substantial rights of the defendants upon the merits, requiring reversal. See State v. Snyder, 188 Iowa 1150, 177 N.W. 77. Here, the case did not go to trial on the specification of locality, and such specification was not, at the trial or in the judgment, an element of the offense or of the description. The defendants could not, by the amendment, have been prejudiced in their substantial rights, for the preliminary information laid the place in Cedar Township, and the minute of the testimony located the alcohol in accordance with the proof on the trial. There was no surprise.
By Section 13749, Code of 1924, the proceedings cannot be affected by reason of any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate clearly the offense and the person charged. Speaking of an amendment of an information before a justice of the peace, in State v. Abrams, 131 Iowa 479, 480, 108 N.W. 1041, it is said:
"The amendment to an information may be added by the same party making the original accusation, and there is no reason for denying any amendment 'consistent with orderly conduct of the judicial business with the public interest and with private rights.'"
See, also, City of Ottumwa v. Stickel, 195 Iowa 988, 191 N.W. 797.
By Section 13744, the court may order an indictment amended, to correct errors in matters of form or in the description of any person or thing. This is applicable to county attorney's informations. Section 13654. The word "form" is the antithesis of--it is in opposition to--"substance." Thibodeaux v....
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