State v. Near
| Citation | 214 Iowa 1083,243 N.W. 519 |
| Decision Date | 24 June 1932 |
| Docket Number | No. 41275.,41275. |
| Parties | STATE v. NEAR. |
| Court | United States State Supreme Court of Iowa |
OPINION TEXT STARTS HERE
Appeal from District Court, Des Moines County; James D. Smyth, Judge.
Trial and conviction on an indictment charging the defendant with the crime of illegal transportation of intoxicating liquors and that he had been previously convicted of the same offense. The defendant pleaded not guilty. The jury returned the verdict of guilty as charged, and judgment was entered in conformity to law. The defendant appeals.
Affirmed.
Wilson & Jackson, of Burlington, for appellant.
John Fletcher, Atty. Gen., Neill Garrett, Asst. Atty. Gen., and H. M. Ofelt, Co. Atty., of Burlington, for the State.
DE GRAFF, J.
The defendant (appellant), Chester Near, was indicted on June 27, 1931, for the crime of illegal transportation of intoxicating liquor, “this being the second offense for said defendant, he having been previously sentenced on September 20, 1927.”
The defendant entered a plea of not guilty, and upon trial to a jury a verdict was returned finding the defendant guilty as charged in the indictment and judgment was entered on the verdict sentencing the defendant to six months' imprisonment and a fine of $500 and costs.
The appellant, Near, assigns the following propositions for a reversal: (1) That the trial court erred in overruling the defendant's motion for a directed verdict upon the conclusion of the state's case, for the reason that the testimony failed to show or prove the allegations of the indictment. (2) That at the conclusion of the entire case the defendant asked for instruction that the jury determine by special finding whether or not the defendant used a vehicle in the transportation of intoxicating liquor, which was refused, although the court gave an instruction that covered this ground. (3) That the court erred in not giving two requested instructions, to wit: (a) That it was incumbent upon the state to prove that some means of conveyance of the liquor in question was employed by the defendant other than merely walking with said liquor from one block to another before it can be said that said liquor was transported; and (b) that transportation of liquor means the use of the vehicle or means other than the carrying upon the person from one place to another. (4) That upon the whole record the crime charged was not committed. These assignments of error will be presently noted seriatim.
The indictment in question is based on section 1945-a1, Code 1931, which reads as follows: “Any person, firm, or corporation, and any agent or employee thereof, who engages in the transportation of intoxicating liquors shall for each act of transportation be fined in a sum not exceeding one thousand dollars or be imprisoned in the county jail not exceeding one year or be punished by both such fine and imprisonment and pay the cost of prosecution, including a reasonable attorney fee to be taxed by the court.” At this point it may be stated that no challenge to the indictment was made by the defendant by demurrer or otherwise, and it may also be stated that no exceptions were taken to the instructions given to the jury by the trial court. In the second instruction given by the court, after stating that the burden of proving the material allegations of said indictment must be established beyond a reasonable doubt, and that the innocence of the defendant will be presumed until his guilt is so proven, the jury was instructed that if you find that the defendant on or about the 27th day of June, 1931, in Des Moines county and state of Iowa, willfully and without justification or excuse by reason of legal authority to carry liquor, or ignorance of the character of the same, engaged in the act of transporting or conveying from one location to another intoxicating liquor of the kind and character capable of use, as a beverage, “such act would constitute the crime of illegal transportation of liquor, charged in the indictment in this cause, and it will be your duty to find the defendant guilty of said crime.” The jury was then instructed if it failed to find such fact beyond a reasonable doubt “you should then acquit the defendant of the charge and return a verdict of not guilty.” As heretofore stated, no exception was taken to the giving of this instruction or any other, in this cause.
We now turn to the errors relied upon for reversal.
[1] 1. The court did not err in overruling the defendant's motion for a directed verdict at the close of the state's evidence in chief or upon the conclusion of all the testimony. The record facts disclose: Captain Machholz of the Burlington police force at about 2 o'clock on the afternoon of June 27, 1931, was at Coons Restaurant in Burlington. As he came out of the restaurant he started south on Central avenue and went almost to the Hudson-Essex Garage. At that point he observed the defendant Near approaching from the south, driving a Packard coupé. The defendant drove into a parking space next door to the restaurant aforesaid. The officer testified that the defendant got out of his car and came up to the sidewalk carrying two packages wrapped in yellow paper. The defendant passed the officer and went...
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