State v. Olson , 200 Iowa 660 ( 1925 )

I. The appellant insists that the evidence is insufficient to sustain the verdict, and that his motions, made at the close of the State's evidence and at the close of all the evidence, for a directed verdict of not guilty, should have been 1. INTOXICATING sustained. The evidence is uncontradicted that LIQUORS: sales of intoxicating liquor were made in a nuisance: place of business, a combined pool hall, barber evidence: shop, and drinking place, on October 23, 1924. sufficiency. The appellant testified that he had been the proprietor of the business conducted at the place prior to September 18, 1924, and that on that day he had sold the business to one Guthrie for $2,500. He introduced in evidence a bill of sale from himself to Guthrie, covering the fixtures, furniture, and stock, purporting to have been executed on that date, which recited a consideration of $2,500 and a mortgage of $1,100, which the purchaser assumed and agreed to pay. He also introduced the note of Guthrie to himself for $1,200, and a chattel mortgage upon the property covered by the bill of sale, securing the same, purporting to have been executed on September 18, 1924. The bill of sale and chattel mortgage were filed in the recorder's office on October 25, 1924. On October 26, 1924, a search of the place was made, and Guthrie, who was in charge of it at the time, was arrested. Appellant admitted that at that time he had the key to the building, and that Guthrie sent for him to procure the key to lock up the place. There was evidence from which the jury might have found that appellant attempted to pass the key to Guthrie secretly, and that it was only when this attempt was foiled by the officers that he delivered the key openly. Guthrie testified that after his arrest he "called the deal off," and that he did not then owe appellant anything, and that appellant had the papers, so far as he knew. Nothing was ever paid by Guthrie on the purchase. Appellant sought to explain his possession of the key to the building by the testimony of himself and Guthrie to the effect that, when he sold to Guthrie, he turned over a bunch of keys, including a key to his trunk, and that, on the day of the search, he had asked Guthrie for the trunk key, and the whole bunch was given him, and he had not yet returned it. There was testimony that Guthrie said, at the time of the search, that he was working for appellant, and that he would have to call him before he could lock up. This testimony, while not binding on appellant, was directly contradictory of Guthrie's testimony on the trial, that he was then the owner of the business. There was also testimony that, after September 18, 1924, appellant was seen in the place, working behind the bar. At the time of the alleged sale of the business to Guthrie, there were two indictments against appellant, charging him with the maintenance of a liquor nuisance; and on September 22d, he pleaded guilty to both of them. Whether appellant was the proprietor of the business, and had a guilty connection with the sales of intoxicating liquor in the building during the time covered by the present indictment, was a question of fact for the jury. Under all the circumstances shown in evidence, we are of the opinion that the jury was warranted in finding that the alleged sale to Guthrie was a mere subterfuge, and that the verdict finds sufficient support in the evidence.

II. Complaint is made that the court permitted witnesses to testify to the purchase of intoxicating liquor by the drink and by the bottle in the place, when appellant was 2. INTOXICATING not present. There was no error here. The State LIQUORS: was required to establish the existence of the nuisance: nuisance and appellant's guilty connection with evidence: it, but obviously was not required to show both purchase of things at the same time, or by the same liquor in witnesses. The order of the introduction of the absence of testimony was within the discretion of the trial accused. court, and no abuse of discretion is shown.

III. Error is assigned on the admission of Guthrie's statement made at the time of the search, that he was working for appellant. The testimony was clearly admissible in impeachment of Guthrie, and sufficient foundation was laid in 3. WITNESSES: his cross-examination for its admission. It is impeachment: true, Guthrie was asked if he did not make the contra- statement at that time to the officers in the dictory presence of appellant, and the testimony on statements. behalf of the State showed that the appellant was not present at the time. But the State was not required to show that all the persons stated to be present in laying the foundation were there. The attention of the witness was called to the time and place and the persons to whom the statement was claimed to have been made. This was sufficient. St. Peter v. IowaTel. Co., 151 Iowa 294; Gibson v. Seney, 138 Iowa 383.

The fact that appellant was not shown to have been present when the alleged statement was made did not affect the admissibility of the testimony, but merely its scope and effect. If he was present, the testimony would have been admissible as substantive evidence against him; if he was not present, its only effect was by way of impeachment of Guthrie. No instruction was asked by appellant in reference to the effect of the testimony, and error is not assigned on the failure of the court to instruct on the subject.

IV. A witness was asked if liquor purporting to have come from the place in question was delivered to him, to be tested for 4. WITNESSES: its alcoholic content. The liquor tested by the examination: witness was sufficiently identified as that identifi- bought at the place. There was no prejudicial cation of error in the question. subject- matter.

V. The testimony of a witness offered by the State in rebuttal 5. CRIMINAL was objected to for the reason that he had not LAW: trial: been before the grand jury. There was no rebuttal objection that the testimony was not rebuttal. witnesses There was no error in overruling the objection. not before State v. Whitnah, 129 Iowa 211; State v. Rivers, grand jury. 68 Iowa 611; State v. Munchrath, 78 Iowa 268.

VI. A witness for the State, a peace officer, who testified to purchasing liquor in the place in question, was asked on cross-examination about the number of places he visited that day and the amount of liquor he drank. On redirect 6. WITNESSES: examination, he was asked to explain why it was credibility: necessary for him to drink in the places he allowing visited. Over a general objection that the witness to question was incompetent, irrelevant, and explain immaterial, he answered. We think that, in view conduct. of the fact that it appeared that the witness was employed by the State to secure evidence of the sale of intoxicating liquors, and the character of the cross-examination, the question was not objectionable. The answer was at some length, and portions of it might have been vulnerable to a motion to strike; but none was made. No prejudicial error appears here.

VII. A motion was made to strike the answer of a witness that appellant "endeavored to slip" Guthrie the keys at the time of the search, on the ground that it was the conclusion of the witness. Another answer by the same witness in substantially the same words remained in the record unassailed. There was no prejudicial error here.

VIII. The indictment charged specifically that the appellant had previously entered pleas of guilty and been 7. INTOXICATING convicted on two separate indictments charging LIQUORS: him with the maintenance of liquor nuisances. nuisance: The judgments in the prior suits were admitted habitual over objection, and this is assigned as error. violator: Error is also assigned on the instructions to evidence. the jury and certain interrogatories, submitted by the court to the jury, requiring a finding, as to each of such cases, whether appellant entered a plea of guilty and was duly convicted. The interrogatories were answered in the affirmative. The records so introduced showed that in each of the prior cases appellant entered a plea of guilty; that judgment imposing a fine of $300 and costs was entered; and that, in default of payment, the appellant was committed to jail for a period of 90 days.

The objection goes to the proposition that in neither judgment was the amount of the appeal bond fixed by the court, and in one case execution of the judgment was suspended during good behavior of the defendant, and until further ordered by the court.

Section 1, of Chapter 21, Acts of the Fortieth General Assembly, is as follows:

"Any person who, having once been duly convicted or having entered a plea of guilty in a criminal action in any district court of this state for violation of any of the provisions of Chapter 6, Title XII of the Code and the laws amendatory thereof, and who shall hereafter be convicted or enter a plea of guilty for a subsequent offense against any of the provisions of said Chapter 6, Title XII of the Code and the laws amendatory thereof, shall be considered a persistent violator of such laws, and for the second violation of said laws shall be fined not less than $500 nor more than $1,000, or imprisoned in the county jail for not less than six months nor more than one year, or by both such fine and imprisonment; and for the third and each subsequent violation of said laws shall be imprisoned in the state penitentiary or state reformatory for not more than three years."

It is, of course, to be conceded that a statute imposing a more severe penalty for a second or subsequent conviction is, like other criminal statutes, to be strictly construed. Rohlf v.Kasemeier, 140 Iowa 182. Our statute differs from any others to which our attention has been called, however, in that it provides that any person who has once been duly convicted or has entered a plea of guilty for a violation of the chapter of the Code prohibiting traffic in intoxicating liquors, and who shall thereafter be convicted for a subsequent violation of the chapter, shall receive the severer penalty provided for. Whether this would authorize the infliction of the increased penalty where the defendant had entered a plea of guilty to the prior charge, but no judgment had been pronounced at all, we are not required to determine; for we are of the opinion that there was, as shown by the records introduced, not only a plea of guilty to the prior indictments, but a final judgment in each of the cases.

The failure of the court to fix the amount of the bond upon appeal affected neither the validity nor the finality of the judgment entered. The defendant was not thereby deprived of the right of appeal; and upon an attempt to enforce 8. CRIMINAL the judgment by his imprisonment, he would not LAW: have been entitled to a discharge on habeas judgment: corpus, but his only remedy would have been an failure to application, by habeas corpus or otherwise, to fix appeal have the amount of the bond fixed. Murphy v. bond: McMillan, 59 Iowa 515; Jacoby v. Waddell, 61 effect. Iowa 247.

Authorities are cited to the effect that a verdict of guilty upon which no judgment has been pronounced, or where sentence or judgment has been suspended, does not meet the requirement of a statute providing for a more severe punishment 9. CRIMINAL where the defendant has previously been LAW: convicted. People v. Fabian, 192 N.Y. 443 (85 judgment: N.E. 672, 18 L.R.A. [N.S.] 684); 16 Corpus Juris suspension 1341. Cases so holding are not in point. Aside during good from the wording of our statute, making one who behavior: has previously entered a plea of guilty and is effect. thereafter convicted for a subsequent offense amenable to the increased penalty, there was a final judgment in the case where the execution of the judgment was suspended during good behavior. Sentence or judgment was not suspended in the sense that it was not imposed or pronounced, but the order purported to do no more than suspend the execution of the judgment during good behavior of the defendant. Without expressing any opinion as to the power or authority of the court to make such an order without complying with Sections 3800 and 3801, Code of 1924, we think that the order did not operate to prevent the judgment on which execution was so ordered suspended, from being final. It appears that, after the conviction in the present case, the order was revoked by the lower court, and the former judgment ordered enforced. Thereupon, the defendant attempted to prosecute an appeal from the former judgment. The appeal was dismissed in this court because not taken within such time after the entry of the judgment as required by statute. Section 1 of Chapter 222, Acts of the Fortieth General Assembly (Section 13995, Code of 1924). The judgments relied upon as prior convictions were not pending on appeal at the time the acts here relied upon for a conviction were committed, or at any subsequent stage of the proceedings. Cases where a motion for a new trial or an appeal is pending in the former action do not present the same question.

In Brittian v. State, 85 Tex. Cr. 491 (214 S.W. 351), cited by appellant, the statute provided for a suspension of sentence by the jury, and that in such case neither the verdict nor the judgment should be final, except upon certain specified conditions. Ex parte Coots, 85 Tex. Cr. 334 (212 S.W. 173). InUnited States v. Lindquist, 285 Fed. 447, it was held merely that the second offense must be committed after conviction for the first.

At the time of the commission of the acts constituting the crime charged, the above quoted section of the Acts of the Fortieth General Assembly was in force; but, at the time the indictment was returned, on November 14, 1924, 10. STATUTES: the Code of 1924 was in force. Section 1964 of codification the Code of 1924, aside from some slight changes of statute: in phraseology, is the same as the prior effect. statute. There is no change in meaning and no change in the definition of the essential elements of a second or third violation, after previous conviction or convictions, of the statutes relating to the traffic in intoxicating liquors. No new offense was created, and no change was made in the punishment or in the circumstances which would authorize or require the infliction of the increased punishment for a second or subsequent conviction, and it is clearly not necessary to give effect expost facto to the Code of 1924, to sustain the conviction of appellant for an act that was a crime under both statutes, and his subjection to the increased punishment provided for by both statutes under the same circumstances. State v. Reyelts, 74 Iowa 499. A mere change in phraseology in the revision of a statute will not work a change in the law, unless it appears that such was the legislative intent. Minneapolis St. L.R. Co. v. Cedar Rapids, G. N.W. Co.,114 Iowa 502; Eastwood v. Crane, 125 Iowa 707.

There was no error in admitting in evidence the record of the prior convictions, or in the instructions on the subject, or in requiring of the jury the special findings.

Other errors assigned, where not disposed of by what has been said, are so clearly without merit as to require no discussion. The record has been carefully examined, and no prejudicial error found.

The judgment is — Affirmed.

FAVILLE, C.J., and STEVENS and De GRAFF, JJ., concur.