State v. Smith

• Decision Date: 04 June 1888
• Parties: STATE v. SMITH.
• Court: Iowa Supreme Court

74 Iowa 580

38 N.W. 492

STATE

v.SMITH.

Supreme Court of Iowa.

June 4, 1888.

Appeal from district court, Jasper county; D. RYAN, Judge.

J. R. Smith was indicted by the state for the unlawful sale of intoxicating liquors. Upon a motion made by defendant, the district court set aside the indictment, and the state appeals.A. J. Baker, Atty. Gen., and A. M. Harrah, Co. Atty., for appellant.

Winslow & Varnum, for appellee.

BECK, J.

1. The motion to set aside the indictment sustained by the district court contained the following statement of the grounds upon which it was based: “The grand jury returning the indictment herein received and acted upon evidence which was illegal, in violation of the bill of rights, and contrary to the fifth amendment to the constitution of the United States; that is to say, the law authorizing registered pharmacists to sell intoxicating liquors, having a permit therefor, also requires that they shall make monthly reports to the auditor of the county of all sales made by them. Such reports are made in obedience to law, and can never be made the basis upon which to found a criminal charge; nor can such reports be offered in evidence against the person making them, upon the trial of a criminal charge against him. And the grand jury in this case, as shown by the evidence returned with the indictment, received such reports and acted upon the same, and such action was and is illegal, and the indictment based thereon is illegally found and void.” The motion was sustained upon these grounds.

2. Counsel for the defendant insist that the decision of the district court must be sustained, for the reason that the abstract fails to show all the evidence submitted to the court in support of the motion, and that there was such evidence other than that found in the transcript of the record upon which the case is submitted. This is not denied by the attorney general. We do not think it necessary that all the evidence given to the court below in support of the motion should be before us, to the end that the decision complained of may be reviewed. The evidence upon which the court acted, we will presume, was pertinent to the issue presented by the motion, and was of no other character. It could not therefore have been broader than the allegations of the motion, and contained matter not contemplated therein. Whatever evidence was submitted upon the motion, in the absence of a showing in the record to the contrary, we will presume establishes the fact upon which the district court based its rulings. These facts, we will further presume, were those, and none other, alleged in the motion as grounds thereof, for the district court could not correctly have based the ruling upon any other facts. We will not presume that such a thing was done, but, on the contrary, will presume that it was not done. It is, therefore, unnecessary there should be before us for consideration other or further evidence than is found in the abstract upon which the case is submitted to us for decision. The abstract shows that the grand jury received and considered as evidence the monthly reports referred to in the motion, and the district court held, and so ruled, that such evidence was unauthorized by law, and by reason thereof the indictment was illegally found, and thereupon it was set aside.

3. We are now required to determine whether the decision of the district court setting aside the indictment is correct. This is the only question remaining for our determination. The defendant being a registered pharmacist holding a permit authorizing him to sell intoxicating liquors, was required by the statute to make the monthly reports referred to in the motion. These reports became records of the auditor's office. See chapter 83, § 2, acts 21st Gen. Assem.; State v. Thompson, 37 N. W. Rep. 104. The permit held by defendant did not protect him from prosecution and conviction for sales of intoxicating liquors for purposes other than those authorized by law. State v. Ward, 36 N. W. Rep. 765.

4. Counsel for defendant first insists that article 1, § 10, of the constitution of the state, which declares that in all prosecutions for crimes the accused “shall be confronted with the witnesses against him,” was violated by the admission of the evidence in question before the grand jury. But, in the first place, the evidence was not admitted in the prosecution of the crime of which defendant was charged, but before the grand jury making the charge. The provision, if bearing the construction claimed by counsel, would...