State v. Lambertti
| Decision Date | 25 October 1927 |
| Docket Number | No. 38183.,38183. |
| Citation | 215 N.W. 752,204 Iowa 670 |
| Parties | STATE v. LAMBERTTI. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Dallas County; W. S. Cooper, Judge.
Prosecution for the crime of possession of intoxicating liquor. The indictment charges that the defendant, on or about the 23d day of June, 1926, did unlawfully and knowingly, have possession of intoxicating liquor. The indictment also charges that this is a second offense.
Upon trial, the jury returned the following verdict:
“We, the jury, find the defendant, B. Lambertti, guilty of possession of intoxicating liquor as charged in the indictment, and we further find that he has heretofore been convicted in the district court of Dallas county, Iowa, of the crime of nuisance.”
The court entered judgment of imprisonment in the county jail for a period of six months, and that the defendant pay a fine in the sum of $500, and, in default of payment, that he be imprisoned for a period of six months. Defendant appeals. Affirmed.
Superseding former opinion 211 N. W. 733.John G. Regan, of Adel, and William P. Welch, of Logan, for appellant.
John Fletcher, Atty. Gen., and Neil Garrett, Asst. Atty. Gen., for the State.
[1] I. One of the contentions of the defendant, in his assignments of error, is that the charge in the indictment with reference to the second offense is not sufficient. There is no merit in this contention. Our statutory law provides:
“Whoever is convicted, or has entered a plea of guilty in a criminal action, in any district court of the state, of a violation of any provision of this title [title VI, Code 1924] or of the laws amendatory thereof, and is thereafter convicted or enters a plea of guilty of a subsequent offense against any provision of this title or of said amendatory laws, shall be punished.” Section 1964, Code 1924.
The indictment unmistakably charges the defendant with the commission of a second offense in the following language:
“That the said B. Lambertti pleaded guilty to maintaining a liquor nuisance on September 21, 1925, as shown by Commitment Record 1 at page 372, of the records of the clerk of the district court of Dallas county, Iowa; that this indictment constitutes his second offense of violating the liquor laws.”
The indictment shall be sufficient briefly to allege such former conviction. Section 1954, Code 1924.
[2][3] II. Much of the evidence, and the liquor introduced in evidence, was obtained by reason of a search of defendant's premises under a search warrant, and it is the claim of the defendant that the search warrant in question was illegally issued upon information filed by the sheriff in Dallas county with the justice of the peace. It may be conceded for the purposes of this case that the search warrant was illegally issued.
Prior to the time of the trial, the defendant filed a motion to suppress all of the evidence obtained by the search of the defendant's premises under the search warrant, on the ground that said search warrant was illegally issued, in that the same was in violation of section 8, art. I, of the Constitution of the state of Iowa, and in violation of sections 13420, 13421, 13422, of the Code of 1924, and in violation of the Fourth Amendment to the Constitution of the United States, and in violation of the Fifth Amendment to the Constitution of the United States, and which motion was by the court overruled.
Objections were made to all of the foregoing evidence at the time of the trial, for the reasons urged in the “motion to suppress,” and the objections were by the court overruled. These rulings, by the court, are assigned as error. In State v. Tonn, 195 Iowa, 94, 191 N. W. 530, we held that evidence, which is pertinent and relevant, is admissible against the defendant in a prosecution for crime, even though the same was secured by an unlawful search of defendant's premises, and have universally so held in the subsequent cases. State v. Gorman, 196 Iowa, 237, 194 N. W. 225;Joyner v. Utterback, 196 Iowa, 1040, 195 N. W. 594;State v. Rowley, 197 Iowa, 977, 195 N. W. 881;Lucia v. Utterback, 197 Iowa, 1181, 198 N. W. 626;State v. Parenti, 200 Iowa, 333, 202 N. W. 77;State v. Wenks, 200 Iowa, 669, 202 N. W. 753. Therefore the rulings of the lower court in overruling the “motion to suppress,” and in overruling the objections of the defendant to the evidence when offered, were correct.
[4] III. Over the objection of the defendant, that the same is immaterial, irrelevant, and incompetent under the indictment, for the reason that the indictment charges the crime of possession of intoxicating liquors, and does not charge a second offense, the court permitted the state to introduce in evidence the judgment entry in the case entitled State of Iowa v. Lambertti, found in Commitment Record 1, p. 372, of the records of the clerk of the district court of Dallas county, Iowa. The defendant assigns as error the overruling by the court of the objection made to the introduction of said record. The indictment does charge a second offense. The record was admissible. Section 11305, Code 1924; State v. Smith, 129 Iowa, 709, 106 N. W. 187, 4 L. R. A. (N. S.) 539, 6 Ann. Cas. 1023.
[5][6] IV. One of the contentions raised by the defendant is that, in the prosecution for an offense claimed to be a second offense under the statute, the state must prove the identity of the accused and the person named in the prior judgment, by evidence other than the identity of names. We have so held. State v. Smith, supra; State v. Merkin, 198 Iowa, 900, 200 N. W. 437;State v. Logli (Iowa) 214 N. W. 490.
The state failed in its proof to identify the appellant as the Lambertti who, on September 21, 1925, pleaded guilty to maintaining a liquor nuisance. The court, however, submitted this issue to the jury in the absence of sufficient evidence to sustain the allegation of the indictment. While this was error, can it be said to be prejudicial error such as to warrant a reversal? The offense charged in the indictment is the unlawful possession of intoxicating liquors. The allegation of a second offense is not an essential element of the crime charged. The charge of a former conviction was in aggravation and to increase the punishment. The failure to make the proof of the former conviction did not prevent a conviction of the indictable offense charged, to wit, possession of intoxicating liquor. State v. Merkin, supra; State v. Smith, supra.
In State v. Logli, supra, the trial court permitted the jury, on insufficient evidence of identity of the defendant with the defendant named in the former prosecutions, by special interrogatories submitted, to find that the defendant had before been twice convicted of a like offense, and the punishment inflicted by the court was not permissible as for a first offense, and we reversed the judgment; but we therein referred to State v. Merkin, supra, where we...
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