State v. Tibbits

• Decision Date: 14 December 1928
• Docket Number: No. 39237.,39237.
• Citation: 222 N.W. 423,207 Iowa 1033
• Parties: STATE v. TIBBITS.
• Court: Iowa Supreme Court

207 Iowa 1033

222 N.W. 423

STATE

v.TIBBITS.

No. 39237.

Supreme Court of Iowa.

Dec. 14, 1928.

Appeal from District Court, Floyd County; C. H. Kelley, Judge.

The defendant was indicted and convicted of the crime of maintaining a liquor nuisance. Affirmed.N. Levinson and L. R. Boomhower, both of Mason City, for appellant.

Jens Grothe, Co. Atty., of Charles City, and John Fletcher, Atty. Gen., and Neill Garrett, Asst. Atty. Gen., for the State.

FAVILLE, J.

The Riverside Garage is located in the west part of Nora Springs. It is near the Shell Rock river. Early in the year 1927 the appellant and one Duvall were partners in the operation of said garage. It is the contention of the appellant that he dissolved partnership with Duvall about the middle of March, 1927, but thereafter he kept his car in said garage, and was in and about said garage with more or less frequency from that time until the 30th of April following. Mrs. Duvall is the only witness who testifies in regard to such claimed change in relationship. On the 23d day of April, 1927, the evidence tends to show that the appellant and Duvall were both at said garage in the evening, and at said time two men drove up to said garage in a Ford coupé, and appellant and Duvall were seen to have a conversation with them, whereupon Duvall disappeared, and shortly thereafter returned with a bottle, which he delivered to said men in the presence of the appellant. On the 30th day of April said place was under surveillance, and at said time the appellant was seen at the said garage, at one time at the back end of the garage and later at the front. A federal officer was in hiding on the river bank back of said garage. A number of bottles, some of which contained intoxicating liquors, were hidden at various places along said river bank. This was south of the line fence of the garage property, and 50 or 60 yards south of the garage. The appellant was not seen at this spot. Duvall, however, came to this place where one of the officers was concealed, and was arrested. The appellant was standing in front of the garage, and was arrested at approximately the same time that Duvall was.

[1][2][3][4] We have not attempted in this statement to review all of the evidence in the case, and it is unnecessary that we do so. The foregoing is merely a brief outline. The appellant moved for a directed verdict at the close of the state's testimony; the motion was overruled, and the appellant did not renew the same at the close of all the testimony. Under such circumstances, alleged error on the ruling on the motion for a directed verdict is deemed to have been waived. Willis v. Schertz, 188 Iowa, 712, 175 N. W. 321. Appellant contends, however, that in the motion for a new trial he challenged the sufficiency of the evidence to sustain a verdict against him. We have held that, even though the motion for a directed verdict is not renewed at the close of all the testimony, a party may raise the question of the sufficiency of the evidence to sustain the verdict on motion for new trial. Willis v. Schertz, supra; Warren v. Graham, 174 Iowa, 162, 156 N. W. 323;Heiman v. Felder, 178 Iowa, 740, 160 N. W. 234;State v. Chambers, 179 Iowa, 436, 161 N. W. 470;State v. Asbury, 172 Iowa, 606, 154 N. W. 915, Ann. Cas. 1918A, 856;Nuessle v. Western Asph. Pav. Co., 194 Iowa, 616, 190 N. W. 5. Conceding, therefore, that the appellant, by his motion for a new trial, raised the question of the sufficiencyof the evidence to support the verdict, we are of the opinion that the court did not err in overruling the motion for new trial on this ground.

The facts and circumstances disclosed by the record made a case for the jury. The record is not so lacking in evidence pointing to appellant's guilt as required the granting of a new trial, and the trial court did not err in overruling appellant's motion for a new trial upon this ground.

[5] II. It is contended that the court erred in admitting in evidence certain bottles and a can that were discovered by the officers in the rear of said garage, concealed along the river bank. These articles were properly identified as having been seized at or about the time of the arrest of the appellant and Duvall, and there was no error in admitting them in evidence.

[6][7] III. Error is charged in the giving of instruction No. 9, which was as follows:

“If in fact William Duvall entered a plea of guilty to the crime of maintaining a nuisance at the place in question, such fact in itself is not sufficient to warrant the conviction of the defendant Tibbits of maintaining a nuisance. In order to warrant you in finding the defendant Tibbits guilty of the offense charged in the indictment, it must be proved beyond a reasonable doubt, that said Tibbits was an accessory of said Duvall in maintaining such nuisance, or aided and...