State v. Purdin
| Decision Date | 26 October 1928 |
| Docket Number | 39086 |
| Citation | 221 N.W. 562,206 Iowa 1058 |
| Parties | STATE OF IOWA, Appellant, v. JOHN PURDIN, JR., Appellee |
| Court | Iowa Supreme Court |
Appeal from Mahaska District Court.--FRANK BECHLY, Judge.
Prosecution for unlawful transportation of intoxicating liquor, in violation of Sections 1945-al and 1945-a2 of the Code of 1927. There was a plea of not guilty, and of former conviction. At the close of the evidence, the district court directed a verdict on defendant's motion, and entered judgment discharging him. The State has appealed.
Affirmed.
John Fletcher and Blanchard W. Preston, for appellant.
McCoy & McCoy and Devitt & Eichhorn, for appellee.
EVANS J. DE GRAFF, ALBERT, MORLING, and KINDIG, JJ., concur.
I.
The information was filed June 10, 1927, and the defendant was duly arrested thereunder. The defendant entered a plea of not guilty, and the case was continued. On July 28, 1927, another information was filed against the defendant before a justice of the peace, charging the defendant with the violation of Section 1936 of the Code of 1927, in that he had been guilty of transporting intoxicating liquor without labeling same, as required by law. This latter case was first brought to trial. From the judgment of guilty rendered by the justice of the peace, the defendant appealed to the district court, where he was again found guilty, and adjudged to pay a fine of $ 100. This latter case is known in the record as No. 14717; whereas the first named case is known in the record as No. 14631. We shall so refer to them. It will be noticed that No. 14717 was the first one tried, and the last begun. Judgment was entered therein on appeal in the district court on October 13, 1927. The defendant pleaded the judgment of October 13, 1927, in No. 14717 as a former conviction for the same offense. Case No. 14631 coming on for trial (being the case now at bar), the evidence offered by the respective parties was confined to the issue of former jeopardy. The State offered no testimony in support of the indictment. At the close of the evidence, the defendant moved for a directed verdict, as follows:
The State also moved for a directed verdict. The court sustained the motion of the defendant, "on the ground that there had been a prior conviction, and that the defendant had been in jeopardy for substantially the same offense as charged in the county attorney's information." A formal verdict was rendered, as directed. Judgment was entered, discharging the defendant and releasing his bond. Both prosecutions were concededly predicated upon the same transportation, which was had on May 28, 1927. The question presented on this appeal is whether the judgment of October 13, 1927, in case No. 14717 operated as a bar to the further prosecution of Case No. 14631. That judgment was predicated upon a violation of Section 1936 of the Code of 1927, which is as follows:
The prosecution of Case No. 14631 as already indicated is predicated upon Sections 1945-al and 1945-a2, which are as follows:
Manifestly, these two sections do not purport to define identical offenses. See State v. Edwards, 205 Iowa 587, 218 N.W. 266; State v. Drain, 205 Iowa 581, 218 N.W. 269. This fact, however, is not decisive.
Section 13808 provides as follows:
"When a defendant has been convicted or acquitted upon an indictment for an offense consisting of different degrees, the conviction or acquittal shall be a bar to another indictment for the offense charged in the former, or for any lower degree of that offense, or for an offense necessarily included therein."
The precise question, therefore, presented to us on this record is whether either of the offenses charged in the two informations was, under the evidence, necessarily included in the other.
Sections 1945-a1 and 1945-a2 (Sections 2058 and 2059, Code of 1924) are new legislation. Its manifest purpose is to deal with the evil of "bootlegging." It forbids what may be termed "bootlegging transportation." By its terms, such transportation is rendered unlawful in all its details. The statute is a sweeping prohibition, and in no sense a regulation. Its violation is a major offense, attended with heavy punishment.
Section 1936 purports to deal with a minor offense. Its caption is the key to its construction. It does not forbid the transportation of intoxicating liquor. It purports to regulate legal transportation by requiring the observance of certain details of method. Such details tend to prevent the abuse of the privilege of legal transportation. State v. Edwards, 205 Iowa 587, 218 N.W. 266; State v. Drain, 205 Iowa 581, 218 N.W. 269.
So far, therefore, as the offenses which are respectively defined in these two sections are concerned, they are manifestly far enough apart to negative mutual identity. To charge a violation of Section 1936, in that there was a failure to properly label the goods, implies that the transportation was otherwise legal. For this reason, only a light penalty is imposed for a breach of regulation. Upon the face of these statutes, therefore, the implication naturally arises that the same act could not well be a violation of both statutes. If the act charged against the defendant constituted a violation of Sections 1945-a1 and 1945-a2, it would be petty to prosecute him under Section 1936. If, on the other hand, the transportation by defendant was authorized by law, but was rendered irregular for failure to label as required by Section 1936, the defendant could not properly be prosecuted under Sections 1945-a1 and 1945-a2. This brings us to a consideration of the evidence.
Notwithstanding this apparent distinction and distance between the two statutes, the State brought them together, arm in arm, and made both of them applicable to the same facts. In order, therefore, to determine the essential identity of the two offenses, we are required to look to the evidence. It is conceded of record that both prosecutions are predicated upon a single act of transportation of intoxicating liquors, had on May 28, 1927. There is no other evidence in the record, and it is a matter of doubt with us whether, in the absence of the evidence, we can properly pass upon the questions which the State raises on this appeal. We strain a point here, to examine the minutes of the evidence attached to the county attorney's information. Under the concessions in the record, we will assume that the evidence in support of the conviction of October 13, 1927, was the same. This evidence shows a clear case of bootlegging transportation of five gallons of intoxicating liquor concealed in an automobile. Upon this testimony, the State had an open road to sure conviction under Sections 1945-a1 and 1945-a2. If it had proceeded to the trial of its first case first, No. 14631, and if it had obtained a conviction thereunder, what would have been the effect of such conviction on Case No. 14717?
Here we come to an interpretation of Section 13808, and especially the last clause thereof, which we have above italicized. It will be noticed from this section that it is not essential, in support of a plea of former jeopardy, that the offense charged in the second prosecution shall be identical with the first in statutory definition. It is enough if such offense charged was necessarily included in the first conviction.
The question has been before us in various forms in many of our previous cases. We have held that a former acquittal of the charge...
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