209 N.W. 468 | Iowa | 1926
The only evidence in the case is that given by the sheriff and by a police officer. The sheriff testifies that he had a call from a man living in that vicinity, and that, about 9:30 in the morning, he went out on the Lincoln Highway, two miles east of the city limits of Cedar Rapids, to a point where a road — not a main-traveled road — leads off to the left. This road turned again to the right. It was not full width; was the width of the car. There were no fences. From this side road, and about 200 yards from the paving, another road branched off to the left or north, made a loop, and turned back to the first byroad. *452 The vicinity was hilly. The road lay through the timber, and the shrubbery and brush were pretty thick. The place was secluded. About 50 feet off the last mentioned road, down in the hill in the timber, the sheriff found 5 five-gallon cans of alcohol. 50 yards (feet?) farther down the hill, in the same timber, he found 5 other five-gallon cans, planted in the bushes. The cans were concealed, and could not be observed from a place 5 or 10 feet from them. The cans were in pasteboard cartons. There were also 4 empty cartons, from which the cans had been removed. The sheriff says:
"We found several other places in the vicinity where you could see where it looked just as though cans similar to these had been placed, and had been removed."
The sheriff left deputies in charge. The sheriff took 8 of the five-gallon cans to town, left the 2 that were nearest the road, and left the cartons of the 8 in the same position in which he found them. At about 3:30, the sheriff returned to the place, and with the police officer hid in the bushes, where they could observe the liquor. About 5:30, the two defendants drove up in a Marmon car, "to a point exactly opposite where the liquor was planted, * * * 40 feet from the first plant, and the other plant was about 50 feet [yards?] west, beyond that." The sheriff says:
"Sam Japone remained standing at the top of the hill, and Ben Japone walked directly down to this first plant, where the first five-gallon cans were, and walked right into the clump of bushes, among the cans. * * * Stanley and I slipped across the road, and when we got to the top of the hill, where we could see down to where the liquor was planted, Ben Japone was in the act of picking up one of the cans of liquor. Sam saw us about that time, and began to talk very fast in Italian, or some language we could not understand, and Ben straightened up, and fastened his belt on his trousers, and stood there."
The police officer says that defendants stopped the automobile in this drive, directly opposite the path that led down to the place where this alcohol was; that Sam stood at the automobile, and was looking around, and Ben disappeared in the bushes and the swale, toward the alcohol; that, when Sam observed them, he yelled something in some foreign language, "and seemed to be pretty much agitated, and Ben straightened up very quickly, *453 and seemed rather nervous and agitated, and didn't know which way to turn, until he was told to come where we were." The sheriff says:
"The one who was on the lookout at the top of the hill became very much excited, the minute he saw us, and, as I said, began to talk to the other one very rapidly in Italian, or some other foreign language; and they were both very much excited, and gave that appearance."
The defendants were put under arrest. The officers found in the automobile three or four pint bottles, two or three containing a trace of alcohol, and one of coffee. They also found a piece of cardboard, similar to that of the containers in the bushes. The car had an Illinois license number. Defendants made no explanation of their presence, but stated then or later that they lived in Springfield, Illinois.
I. The prosecutions are by county attorney's informations. It is first claimed that the informations are insufficient because verified on information and belief. The verification is by the county attorney, to the effect that he has made 1. INDICTMENT a full and careful investigation of the facts AND upon which the charge is based, and "that the INFORMATION: allegations contained in the above and foregoing trial information are true, as I verily believe." information: Defendants cite People v. Shockley,
II. It is next objected that the informations are insufficient 2. INTOXICATING because they do not negative the existence of a LIQUORS: permit (citing People v. Martin,
III. It is stated that the informations consist of conclusions 3. INTOXICATING generally, and not facts. The informations are LIQUORS: in the usual form, approved in State v. Dixon,
nuisance:
IV. The informations charge that the defendants did *454 "keep, maintain, and use a certain building or place in the city of Cedar Rapids, Linn County, Iowa, for the purpose and with the intent of keeping," etc. After the jury was 4. INDICTMENT sworn, the county attorney asked leave to amend AND by striking out the words "the city of Cedar INFORMATION: Rapids." Defendants objected, on the grounds amendment: that they were surprised, and that "this striking amendment is not an amendment in matter of form, unnecessary but goes to the substance * * * and changes the allegation allegations of the indictment, and forces the in re defendants to provide proof of not having nuisance. maintained a liquor nuisance in some place different from the city of Cedar Rapids, where it was formerly alleged they maintained said nuisance." It was objected that to allow the amendment would be in violation of Section 13744, Code of 1924. No effort was made to show that defendants were in fact surprised. The memorandum of testimony attached to the informations stated that one witness named would testify that they located alcohol in cans in bushes or brush near the Lincoln Highway in Linn County, Iowa; that another witness named would testify that he found alcohol planted in a deserted place on a byroad off Lincoln Highway, in Linn County, Iowa; that the witnesses saw these defendants drive up in a Marmon automobile, and go to where the liquor was hidden. The preliminary informations alleged that the nuisance was maintained in Cedar Township, Linn County, Iowa. Defendants' objections were overruled.
A specification of the place of conducting the nuisance, other than to show that it was within the county, and therefore within the jurisdiction of the court, was unnecessary. State v. Arnold,
By Section 13749, Code of 1924, the proceedings cannot be affected by reason of any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate clearly the offense and the person charged. Speaking of an amendment of an information before a justice of the peace, in State v. Abrams,
"The amendment to an information may be added by the same party making the original accusation, and there is no reason for denying any amendment `consistent with orderly conduct of the judicial business with the public interest and with private rights.'"
See, also, City of Ottumwa v. Stickel,
By Section 13744, the court may order an indictment amended, to correct errors in matters of form or in the description of any person or thing. This is applicable to county attorney's informations. Section 13654. The word "form" is the antithesis of — it is in opposition to — "substance." Thibodeaux v.Thibodeaux,
The statute authorizes amendments in the description of the "thing." The word "thing" is used in contradistinction to *456 "person." "Things" are distributed into two kinds, things real and things personal. Things real are such as are permanently fixed and immovable, as lands and tenements. 2 Blackstone's Commentaries 16; Standard Dictionary, "thing;" Webster's New International Dictionary, "thing."
Section 13747 declares:
"Such amendment shall not prejudice the substantial rights of the defendant, or charge him with a different crime or different degree of crime."
The purpose of the statute in permitting amendments thus clearly appears. As the defendant was fully apprised of the offense charged and the circumstances, and must have known that the designation of Cedar Rapids was an error, and no additional time was asked, he was not prejudiced. The allowance of the amendment was not erroneous. State v. Anderson,
V. It is said that permission to amend was given, but no amendment was in fact made. One objection was "that this amendment now offered is not an amendment in matter of form, but goes to the substance," etc. No objection that a 5. INDICTMENT formal amendment was not filed was made in the AND lower court, up to the exceptions to INFORMATION: instructions and motion for new trial. The amendment: record showed that leave to amend was asked and waiver of granted. The trial was conducted as if the formal amendment had been made. By Section 13746 it amendment. might be dictated into the record. In substance, this was done. By Section 14010, this court must examine the record, without regard to technical errors or defects which do not affect the substantial rights of the parties, and render such judgment on the record as the law demands. The objection was purely technical. The defendants were in no wise prejudiced, either by the leave to amend or the failure to file the formal amendment, and are not entitled, on either account, to a reversal. State v. Anderson,
VI. The sheriff testified that he found the cans inclosed in cardboard or pasteboard cartons fitted around them.
"They have 4 flaps on each end that fold over. It is the same as other — well — I judge they are about 4 1/2 or 8 or 10 inches. Each flap covers half of the can, or half of the top of the can or bottom."
He examined the car. He was asked what he found in the car, and answered, "3 bottles, two of them containing a trace of alcohol, and one had evidently had coffee in it. We also found a flap or part of one of these pasteboard cartons that had been torn off, and evidently left in the car."
Defendants moved to strike out the statement "flap or part of one of these pasteboard cartons," as the witness has not shown himself competent to state. The motion was overruled. It is argued that this statement of the sheriff's was 6. CRIMINAL an opinion. It was a conclusion, but a LAW: permissible one. In ascertaining whether the evidence: flap or piece was torn from one of the cartons, opinion the cartons and the piece, their texture, size, evidence: shape, and completeness, or integrity, the identity of texture, grain, color, stains, stamping, part of printing, edges, surfaces, the fitting of the exhibit: parts and edges, fold, and general appearance, permissible would be matters of observation which could conclusion. not be reproduced to the jury, but from all of which the fact as to whether the flap was torn from a carton would be readily observed. In Commonwealth v. Sturtivant,
"Such evidence has been said to be competent, from necessity, on the same ground as the testimony of experts, as the only method of proving certain facts essential to the proper administration of justice. Nor is it a mere opinion which is thus given by a witness, but a conclusion of fact, to which his judgment, observation, and common knowledge has led him, in regard to a subject-matter which requires no special learning or experiment, but which is within the knowledge of men in general. Every person is competent to express an opinion on a question of identity, as applied to persons, things, animals, or handwriting, and *458
may give his judgment in regard to the size, color, weight of objects, and may estimate time and distances. He may state his opinion in regard to sounds, their character, from what they proceed, and the direction from which they seem to come. State v.Shinborn,
We are committed, as are the courts generally, to the same *459
rule. Rothrock v. City of Cedar Rapids,
"The appearance to which witness referred was one difficult to describe to the jury so as to convey to the mind the inference of precisely what was indicated, and it has been held to be competent for a witness to testify to his conclusion when the matter to which the testimony relates cannot be reproduced or described to the jury precisely as it appeared to the witness at the time. * * * `It must almost always be impossible for a witness to reproduce in words absolutely all the detailed data which enter into his estimate, and there can be no danger in receiving such an estimate from a competent witness.'"
See, also, McIntosh v. Livingston,
Such statements have been termed "shorthand rendering of the facts." In Mobile, J. K.C.R. Co. v. Hawkins,
"The rule prohibits merely the drawing or stating of conclusions of law, which are questions for the court, and of certain conclusions of fact which, under the issues and the evidence, are exclusively questions for the jury, and to be determined from all the other facts or evidence in the case. These conclusions of fact are denominated by our court `shorthand rendering of facts,' to distinguish them from mere gratuitous opinions, motives, and conjectures of the witness."
In Rearden v. St. Louis S.F.R. Co., 215 Mo. 105 (114 S.W. 961, 971), the court quotes with approval from 1 Wharton on Evidence (3d Ed.), Section 510:
"The true line of distinction is this: An inference necessarily involving certain facts may be stated without the facts, the inference being an equivalent to a specification of the facts. *460 * * * In other words, when the opinion is the mere shorthand rendering of the facts, then the opinion can be given, subject to cross-examination as to the facts on which it is based."
The witness must have made an examination sufficiently thorough to enable him to form an opinion. It would not have been error for the court to have stricken out the statement, in order that the sheriff might first testify more fully and specifically to the examination and comparisons made. It is apparent from his testimony referred to that he did examine the cartons, those about the cans and those from which the cans had been removed, observed them, and observed the flap or part torn off. On the record, it was within the administrative discretion of the court to require the witness's observations and the particulars of examination to be more fully set out, or to allow the answer to stand, and leave the parties to examine and cross-examine him with respect to them. Lehman v. Minneapolis St. L.R. Co.,
The police officer testified, without objection, that, besides the filled cans, there were four or five cardboard containers similar to the ones that were around the cans; that they found in the automobile bottles and a piece of cardboard similar to the cardboard that was around the alcohol containers which were hidden in the bushes. The defendants were contented not to cross-examine either witness as to their observations or grounds for their statements. There was no error.
VII. Defendants contend that the evidence is insufficient to sustain a conviction. They concede that it might properly be found that the keeping of the alcohol at this place was a nuisance. State v. Elliott,
VIII. Defendants were sentenced to pay a fine of $1,000 each, and to serve one year in the county jail. They claim that the punishment is excessive. For the purpose of this question, we must assume them to be guilty of having had, 8. INTOXICATING at the place in question, not less than 70 LIQUORS: gallons of alcohol, for immediate illicit nuisance: distribution. The penalty inflicted should be non- such as to discourage the traffic by defendants excessive and by others. We must decline to interfere with sentence. the sentence. *462
IX. Appellants move to strike from appellee's amendment to abstract that part setting out the justice's 9. CRIMINAL transcript and the preliminary informations, on LAW: appeal the ground that they were not and error: proved at the trial, and that they are not in record: evidence, and have nothing to do with the scope: and appeal. They are a part of the record. Section contents. 13551, Code of 1924. The motion is overruled.
Thirty-five propositions are submitted for our consideration. We have discussed all that present any question of importance.
The judgments are — Affirmed.
De GRAFF, C.J., and STEVENS, FAVILLE, and VERMILION, JJ., concur.