State v. Umphalbaugh
| Decision Date | 13 December 1929 |
| Docket Number | 39931 |
| Parties | STATE OF IOWA, Appellee, v. WILLIAM UMPHALBAUGH, Appellant |
| Court | Iowa Supreme Court |
Appeal from Harrison District Court.--H. J. MANTZ, Judge.
The defendant was charged with the crime of unlawfully having possession of certain intoxicating liquors, and was convicted, and appeals.
Affirmed.
Robert H. Kirlin and William P. Welch, for appellant.
John Fletcher, Attorney-general, Neill Garrett, Assistant Attorney-general, and Roy E. Havens, County Attorney, for appellee.
One McKay is engaged in the produce and cream business in the town of Woodbine. He sells gas, oil, feed, groceries, and other articles. His place is located on the southwest corner of one of the business blocks of said town. It was formerly used as a livery barn. The southwest corner of the building has been inclosed for use as a small grocery and cream station. Immediately east of this room is a driveway, and east of the driveway is a shed. To the rear of the shed and grocery store building there is an open court, surrounded on the west, north, and east sides by a continuous shed, over managers and stalls. There is no means of access to this inclosure except through said driveway. On the 2d day of August, 1928, McKay was at his place of business, and the appellant came there in an automobile, and drove in said driveway. About 10 or 15 minutes before the appellant arrived at his place of business, McKay had gone into the back inclosure, and had made an examination of certain stalls there, for the purpose of finding whether any intoxicating liquor had been placed therein. There was no liquor there at the time. When the appellant came to said place of business, he drove into said driveway, stopping near the door of the store, and setting out some produce, and then drove his car forward a short distance. The witness McKay observed the appellant reach into the back seat of his car and take out a package, which the appellant placed under his arm, and then proceeded north into the open court, and then turned east toward the stall on the east side of the inclosure. At that time the appellant was about 20 feet distant from the witness McKay and the latter saw the appellant plainly, and observed that the package which the appellant placed under his arm was in a brown cloth, and he observed its appearance and size. About 15 minutes later, the witness McKay went to the stall where he had seen the appellant go, and then discovered two bottles of intoxicating liquor in a brown sack which had been used to hold chains. McKay testified that, between the time when he had first examined said stall and found no liquor therein and the time that he examined it after the appellant had gone toward said stall, no person other than the appellant had gone into the said back inclosure. McKay testified that the package which he found in the stall containing said bottles of liquor was the same package he saw the appellant have in his possession as he went from the automobile to the stall.
I. Appellant contends that the court erred in overruling appellant's objection to the question propounded to the witness McKay as to whether or not the package found by him in the stall was the same package that he had seen the appellant carry from his car. The identity of an object may be established by the proof of facts and circumstances, and also by the positive identification of a witness. While it is, in a sense, in the nature of an opinion, it is also a fact of personal knowledge. State v. Hoppe, 39 Iowa 468; State v. Buckley, 60 Iowa 471, 15 N.W. 289. The court did not err in the admission of this testimony.
II. Appellant contends that the court erred in overruling his objections to the offer in evidence of a brown sack and the two bottles of intoxicating liquor, for the reason that no proper or sufficient foundation has been laid, connecting the appellant with said exhibits. The evidence tends to show that the witness McKay, while about 20 feet distant from the appellant, saw the appellant with a package under his arm which the witness identified as the identical package shortly thereafter discovered by him in the manger. The evidence shows that during said time no other person had been in said inclosure except the appellant. The evidence was sufficient to take to the...
To continue reading
Request your trial