State v. Kroll
Decision Date | 14 October 1952 |
Docket Number | No. 48027,48027 |
Citation | 55 N.W.2d 251,244 Iowa 173 |
Parties | STATE v. KROLL et al. |
Court | Iowa Supreme Court |
L. V. Gilchrist, Denison, for appellants.
Robert L. Larson, Atty. Gen., and Earl R. Shostrom, Sp. Asst. Atty. Gen., and Allan F. Nash, County Atty., Denison, for appellee.
This appeal has developed by reason of a proceeding to condemn certain intoxicating liquors and empty containers as provided for in Chapter 751, 1950 Code, I.C.A. In the initial hearing before a magistrate the articles were ordered forfeited. The defendant, the claimant of the articles in controversy, appealed to the district court. Section 751.40, 1950 Code, I.C.A. In that court it was held that the warrant, under which the search was made, had been issued without probable cause and in violation of the provisions of art. 1, Sec. 8, Constitution of Iowa, I.C.A. It held consequently that a forfeiture could not be legally entered, and in a ruling withdrawing the case from the jury held in part as follows:
* * *'(Italics supplied.)
The defendant has appealed to this court from the order entered by the trial court and particularly to that portion thereof following the words, 'subject, however,'.
It appears from the record that there was pending in the district court a criminal action entitled State of Iowa v. Herbert Kroll and in which case the articles seized in the search warrant proceedings were involved.
The question raised and presented on this appeal is: Should a trial court, under circumstances as herein set forth, order the immediate restoration of the property to the one from whom it was improperly taken, as in the case of the present appellant; or can the court order the seized articles held for use in a criminal action then pending?
Constitutional and statutory enactments that are pertinent to our discussion of the question heretofore set forth are hereafter set out.
Article 1, Section 8, Constitution of Iowa, I.C.A.
Section 751.23, 1950 Code, I.C.A.
Section 751.43, 1950 Code, I.C.A.
Section 771.13, 1950 Code, I.C.A.
In order that the facts relative to the criminal case and the use of the exhibits here involved before the grand jury may be understood, we shall set out portions of the evidence and a subsequent ruling of the trial court. The objections made by the appellant's counsel are not noted. The sheriff in the original hearing testified in part as follows:
'* * * The property that I obtained in this search was turned over to the Clerk this morning at your (the county attorney) request.'
In connection with a motion by the appellant asking the court to reconsider the original ruling made by it and as heretofore set forth the sheriff further testified in part:
The clerk of the district court in the original hearing testified: * * *'
In connection with the motion to reconsider the court's original ruling the clerk further testified in part as follows:
'* * * I have brought with me some bottles containing apparently whiskey and champagne and some empty ones.
* * *
* * *
The trial court in its ruling on the motion to reconsider stated in part as follows:
'It is ordered that the Court cannot and does not now modify its orders previously made in this case, but permits said orders to remain as originally made and to be effective only when the other custody or detention spoken of herein has ended.'
There may be some variance in the testimony and ruling relative to the number of the two cases. However, there can be no misunderstanding that there was a confiscation case--the one here on appeal and a criminal case. The latter was the one in which the sheriff testified in his appearance before the grand jury and where the exhibits in question were presented by the sheriff.
I. In the light of the record made we have concluded that the court was justified in ordering the exhibits held for such use as might be later determined proper in connection with the criminal case. The delivering of exhibits used before the grand jury to the clerk of the district court was in conformity with the statutory directive. Section 771.13, 1950 Code, I.C.A. The fact that the exhibits were not delivered to the clerk until the day of the hearing relative to the confiscation proceeding in no way affects the validity of the order entered by the trial court. The temporary holding of exhibits by the sheriff is not improper. The provision of the statute relative to filing exhibits with the clerk is directly only. State v. Bazoukas, 226 Iowa 1385, 1388, 286 N.W. 458.
It should be kept in mind that there are two different cases and that they are affected by two different statutes. A ruling in the confiscation case should not affect the criminal case proceeding. We cannot conclude that the two statute are in conflict. They pertain to two different situations. We held in Iowa Farm Serum...
To continue reading
Request your trial-
State v. Hall
...will not be considered. In the first place, we have held such sections to be directory only and not mandatory. State v. Kroll, 244 Iowa 173, 179, 55 N.W.2d 251, 255 (1952) and citations; State v. Bading, 236 Iowa 468, 475, 17 N.W.2d 804, 808 (1945). We have also held that the requirement th......
- State v. Finnegan
-
State ex rel. Hanrahan v. Miller
...is now supported by many later cases. In their resistance to appellee's petition for rehearing they cite only one case: State v. Kroll, 244 Iowa 173, 55 N.W.2d 251, 255. On broad principles the Kroll case does not support appellants. It is, in fact, favorable to appellee. Somewhat the same ......
-
State v. Kaufman
...148; nor prevent their retention under court order as potential evidence in the criminal trial. See § 751.36, The Code; State v. Kroll, 244 Iowa 173, 55 N.W.2d 251 (1952). The forfeiture proceeding and the criminal actions are separate and independent. See Dobbins v. United States, 96 U.S. ......