State v. Striggles
| Decision Date | 28 September 1926 |
| Docket Number | 37117 |
| Citation | 210 N.W. 137,202 Iowa 1318 |
| Parties | STATE OF IOWA, Appellee, v. D. T. STRIGGLES, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED JANUARY 22, 1927.
Appeal from Polk District Court.--O. S. FRANKLIN, Judge.
Defendant was indicted, tried, and convicted for keeping a gambling house. From a judgment entered against him therein, he appeals.
Affirmed.
Howard L. Bump and Hyman E. Miller, for appellant.
Ben J Gibson, Attorney-general, and Neill Garrett, Assistant Attorney-general, for appellee.
We gather from the record and arguments of counsel the following history of the case at bar: It appears that in the early part of 1923 there was installed in several places of business in the city of Des Moines a gum or mint vending machine. The machine and its workings are fully set out in the opinion in the case of State v. Ellis, 200 Iowa 1228, 206 N.W. 105. In that opinion it was judicially determined that such machine was a gambling device, within the inhibition of the statute.
On August 1, 1923, in several proceedings then pending in the municipal court of the city of Des Moines, a decision was rendered holding that such machine was not a gambling device. The distributors of the machine in question thereupon secured a certified copy of said decree, and equipped themselves with a letter from the county attorney's office, and also one from the mayor of the city, which stated that such machine was not a gambling device. Thus equipped, they presented themselves to appellant, Striggles, who conducted a restaurant in the city of Des Moines, and induced him to allow them to install a machine in his place of business.
Subsequent thereto, in the early part of 1925, the Polk County grand jury returned an indictment against appellant, in which it charged that he did "willfully and unlawfully keep a house, shop, and place * * * resorted to for the purpose of gambling, and he, * * * did then and there willfully and unlawfully permit and suffer divers persons, * * * in said house, shop, and place * * * to play a certain machine * * * being then and there a gambling device." On entering a plea of not guilty, the appellant was put on trial. He offered in evidence the aforesaid certified copy of the judgment decree of the court, and the letters from the county attorney and the mayor, which were promptly objected to, and the objection sustained. The appellant, while testifying, was permitted by the court to say that the exhibits had been presented to him before he permitted the machine to be installed. He was then asked by his counsel whether he relied on the contents of the papers when he gave his permission for installation of the machine. Objection to this line of testimony was sustained. He was also asked whether he would have permitted the machine to be installed, had he believed it to be a gambling device. He was not permitted to answer this question.
It is first urged in this case that the certified copy of the judgment from the municipal court was admissible in evidence, on the strength of the case of State v. O'Neil, 147 Iowa 513, 126 N.W. 454. A careful reading of the case, however, shows that it has no application to the case at bar. A certain statute of this state was held to be violative of the Constitution of the United States, and therefore void, in State v. Hanaphy, 117 Iowa 15, 90 N.W. 601, and State v. Bernstein, 129 Iowa 520, 105 N.W. 1015. The United States Supreme Court then decided Delamater v. South Dakota, 205 U.S. 93. On the strength of this opinion by the United States Court, we then overruled the Hanaphy and Bernstein cases, in McCollum v. McConaughy, 141 Iowa 172, 119 N.W. 539.
The crime with which O'Neil was charged, was committed by him between the time of the filing of the opinion of this court and the filing of the opinion of the United States Supreme Court. We held in that case that the appellant could not be guilty, because he was entitled to rely on the decision of this court which held the law in question unconstitutional.
Cases cited from other jurisdictions in appellant's argument are in line with the O'Neil case. There is no case cited, nor can we find one, on diligent search, holding that the decision of an inferior court can be relied upon to justify the defendant in a criminal case in the commission of the act which...
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