223 N.W. 153 | Iowa | 1929
On the 29th day of November, 1927, the grand jury of Dickinson County returned an indictment against the defendant, charging him with the unlawful possession of intoxicating liquor. The indictment also charged three previous convictions for liquor offenses, the first in Clay County, for unlawful keeping and dispensing of intoxicating liquors, under date April 26, 1919; the second, in Pocahontas County, on March 10, 1924, under the bootlegging statute; and the third, in Osceola County, on October 5, 1925, under the illegal transportation statute. Upon the trial of the case, certified copies of the judgment entries of each of these former convictions were offered, and admitted in evidence over the proper objections of the defendant. This gives rise to the first question raised on the appeal.
By reference to the indictment, it is to be seen that two of these prior convictions antedated the Code of 1924, while one of them was subsequent to the adoption of that Code. As to the first two convictions, we have held, in the case of State v. Kuhlman,
As to the last previous conviction specified in the indictment, such conviction postdated the Code of 1924, hence falls under the provisions of the above section of the statute. It is insisted, however, that this question was not properly raised, hence was waived. A basis for such contention is claimed to be found inState v. McGee,
It is no more than fair to the district court to call attention to the fact that the Kuhlman opinion was filed after the instant case was closed in that court.
Some other questions are discussed, but we do not find that they merit any serious consideration. It is therefore ordered that the case be reversed only on the question of sentence, and remanded to the district court, with instructions to sentence the defendant under Subdivision 1 of Section 1964, Code of 1927. —Reversed and remanded.
EVANS, STEVENS, De GRAFF, MORLING, and WAGNER, JJ., concur.
FAVILLE and KINDIG, JJ., dissent. *555