State v. Lilteich

• Decision Date: 15 December 1922
• Docket Number: 34885
• Citation: 191 N.W. 76,195 Iowa 1353
• Parties: STATE OF IOWA, Appellee, v. JOHN LILTEICH, Appellant
• Court: Iowa Supreme Court

191 N.W. 76

195 Iowa 1353

STATE OF IOWA, Appellee, v. JOHN LILTEICH, Appellant

No. 34885

Supreme Court of Iowa, Des Moines

December 15, 1922

REHEARING DENIED JUNE 22, 1923.

Appeal from Louisa District Court.--OSCAR HALE, Judge.

INDICTMENT of defendant on charge of selling intoxicating liquor in violation of law. Trial to a jury, which returned a verdict of guilty, and from the judgment thereon, the defendant appeals.

Affirmed.

Hirsch & Riepe, for appellant.

Ben J Gibson, Attorney-general, B. J. Powers, Assistant Attorney-general, and W. E. Jackson, County Attorney, for appellee.

WEAVER J. STEVENS, C. J., PRESTON and DE GRAFF, JJ., concur.

OPINION

WEAVER, J.

I.

The indictment in this case was found by the grand jury of Des Moines County, in which jurisdiction the alleged offense was committed, but on application of the defendant for change of venue to another county outside of that judicial district, on the alleged ground of excitement and prejudice against him in Des Moines County and district which would prevent his obtaining a fair and impartial trial therein, the cause was sent to the district court of Louisa County, where all further proceedings were had.

A reversal of the judgment below is sought on the following grounds: Error is alleged upon the overruling of defendant's objection to the appearance of F. E. Thompson, Esq., to assist the county attorney in the prosecution. The objection so raised was stated by defendant's counsel in the following words:

"If the court please, I want to object at this time to the appearance of Mr. Thompson as additional counsel in the case, because I do not think the laws of the state of Iowa permit it, and it is against public policy, as expressed by the Supreme Court."

In support of this objection, defendant called Thompson to the witness stand, and obtained his statement that he had appeared as attorney for one Jay Brown, who had been indicted for alleged perjury in testimony before the grand jury in the instant case. Thompson further testified that he had appeared as attorney for one Marion Bates, indicted on charge of nuisance, said Marion Bates being the brother of one Fred Bates, said to be prosecuting witness in the instant case. On this showing, the objection to the appearance of Mr. Thompson was overruled.

That this ruling was not erroneous is too clear for argument. There is no statutory prohibition of the employment or appearance of counsel to assist the public prosecutor in the trial of a criminal case, except such as is found in Code Section 305, which forbids such appearance by an attorney who is interested in a civil action involving the same state of facts. There is no evidence whatever that Mr. Thompson was then interested in any civil action the result of which depended upon the truth or alleged truth of the criminal charge against the defendant. In the absence of any ground for objection upon said statutory prohibition, the allowance of additional counsel for the State has always been regarded by this court as being within the sound discretion of the trial court. State v. Fitzgerald, 49 Iowa 260; State v. Montgomery, 65 Iowa 483, 22 N.W. 639; State v. Crafton, 89 Iowa 109, 56 N.W. 257; State v. Helm, 92 Iowa 540, 61 N.W. 246. The case of State v. Jensen, 178 Iowa 1098, 160 N.W. 832, is not at all in point. That case involved the application of the statutory prohibition above cited, and nothing more. The objection here made was properly overruled.

II. Error is next assigned upon the admission of testimony tending to show that defendant was engaged in the unlawful manufacture of intoxicating liquor. A witness for the State, one Jay Brown, testified that he had been a member of the police force of the city of Burlington, as a patrol driver, for about three years, and had left that service in October, 1920, because he could "make more hootch." He further said that he was engaged in "making hootch" while still on the force, using for that purpose an "abandoned slaughterhouse" at or near his home; that the defendant, Lilteich, furnished him the still, and showed him how to use it. According to defendant's abstract, the witness further testified as follows:

"John Lilteich visited at my house after I started making hootch. He furnished me with a still. The first time I remember him being at my place, he came out to show me how to make it. He got that still in July, right after the Regatta, sometime before the 15th. He told me one night that I had a place to make hootch, and that he would give me a still; and before I got the still, he gave me the money to get the sugar with. I didn't have any money, and I got it from the Benner Tea Company--$ 28 for the first sack of sugar; and he instructed me how to set the mash; and when we was ready to run, why, we went down town and got this still,--Lilteich and I. Down towards Angular on South Main Street. There was a big car standing there, and he told me to go with him, and I got in the back seat, and Lilteich and this other man. I told them where to drive--2500 Division Street. We didn't go near the house, but stopped at the foot of the hill, and I carried the still up, and then the next day Lilteich came and showed me how to run it. Put in a batch of mash, and we got five gallons of liquor and disposed of it. We made more than 250 gallons, all told. I know that he disposed of over 230 gallon. Some of it we would drink, and what we didn't drink, he took away. I didn't get very much. I was supposed to get half, but didn't. He had the money, and wouldn't pay it. I never knew him when he wore a uniform. He was a motor-cycle cop at that time. Sometimes he took the stuff away in the motor-cycle, and sometimes in a Ford car, and sometimes in a taxicab. There was other fellows with him. One time, I am certain in my own mind it was Ogden in the car. Ogden is commissioner of public safety down there in Burlington. We ceased making about the first of February. I quit because I was moving out of town. I made it from between the 1st and 15th of July, 1920, to about February 1, 1921. Lilteich disposed of most of the liquor. He came for it usually after dark. Sometimes only one gallon and sometimes five gallon. In the side car of the police motor cycle or in an automobile. At first, when we started, he was getting $ 25 a gallon, and it dropped to $ 20, and finally, in the year '21, it dropped to $ 15. * * * Fred Bates was at my house while I was making liquor at 2500 Division Street. He knew I was making liquor. I told him. I don't remember that Bates and Lilteich were ever there together. I told Bates John and I had a still and was making liquor. I knew Fred Bates before I went out to Division Street, before I quit the police force. I had been at his house a time or two, with Goodman one time, and several times with John Lilteich."

The witness was subjected to a very rigid and minute cross-examination, which developed more or less of matter affecting his general credibility, but did not involve him in any material contradiction of the alleged facts to which he had testified on direct examination.

The wife of Brown, testifying for the State, said that, while she and her husband were living at the "slaughterhouse place," defendant was there very frequently; that he "was in partnership with her husband, making hootch," beginning some time in July, 1920. She adds:

"Sometimes he would come in the police motor cycle and sometimes in an automobile. Sometimes he would carry...