Opinion
No. 44439.
March 14, 1939.
CRIMINAL LAW: Appeal and error — criminal appellant's duty to 1 submit brief. In appeal from conviction for illegally transporting intoxicating liquor, where case was submitted only on transcript of record and printed abstract, amendment, and denial, defendant had further duty to submit brief and argument, since court sits to correct errors of law, and the precise complaint must be substantially pointed out by appellant.
CRIMINAL LAW: Appeal and error — failure to file brief —
abandonment presumed.
INTOXICATING LIQUORS: Unlawful transportation — sufficiency of
evidence.
Appeal from Winneshiek District Court. — H.E. TAYLOR, Judge.
The defendant was indicted, tried and convicted by a jury for the crime of unlawful transportation of intoxicating and alcoholic liquors in violation of section 1921-f3, chapter 93-F1 of the 1935 Code of Iowa. Before the jury was sworn, the defendant withdrew his plea of not guilty for the purpose of filing a demurrer to the indictment which demurrer was overruled. The usual motions for a directed verdict, new trial, and objections and exceptions to instructions were filed by the defendant and overruled by the court. There was also a motion to discharge the jury and declare a mistrial based on alleged misconduct of the prosecuting attorney which was also overruled, the court admonishing the jury to disregard and not consider the matters constituting the basis of the alleged misconduct.
From all these adverse rulings, defendant has appealed. — Affirmed.
John Mitchell, Attorney General, and Carl Nystrom, for appellee.
A.E. Sheridan, for appellant.
[1] Neither side has favored us with a brief and argument. The case is submitted on a transcript of the record and a printed abstract together with a denial and amendment to the abstract. The abstract was filed May 14, 1938, and nothing further has been filed by the defendant and no appearance was made for him in this court and, since the defendant has elected to present his appeal by printed abstract, it was his duty to prepare and file a brief containing brief points and authorities in support thereof. See Rules 32 and 34 of this court. See, also, State v. Johns, 224 Iowa 487, 275 N.W. 559, and State v. Briggs, 207 Iowa 221, 223, 222 N.W. 552, 553. In the latter case, this court, speaking through Justice Faville, said:
"In law actions, we sit as a court for the correction of errors at law, and the precise error of which complaint is made must be substantially pointed out by the appellant. Such is our rule, and such is our uniform holding. State v. Vandewater, 203 Iowa 94, 212 N.W. 339; State v. Gibson, 204 Iowa 1306, 214 N.W. 743; State v. Lambertti, 204 Iowa 670, 215 N.W. 752; State v. White, 205 Iowa 373, 217 N.W. 871; State v. Cordaro, 206 Iowa 347, 218 N.W. 477; State v. Gill, 202 Iowa 242, 210 N.W. 120."
[2] Just recently, in two civil suits, we held that to fail to file brief and argument raised a presumption that appellant had abandoned his appeal. See Walsh v. Pocahontas State Bank, Iowa, 263 N.W. 834, and Sentner v. District Court, 226 Iowa 335, 284 N.W. 166. See, also, State v. Price, 94 Iowa 751, 64 N.W. 596.
[3] However, in compliance with section 14010, 1935 Code, we have carefully read the record as certified to this court and we fail to find any legal question affecting the substantial rights of the defendant. The evidence to sustain the conviction of the defendant is ample, showing beyond controversy that he was guilty as charged.
There does not seem to be any reason for disturbing the judgment of the district court and it is affirmed. — Affirmed.
MITCHELL, C.J., and RICHARDS, STIGER, OLIVER, HALE, BLISS, SAGER, and MILLER, JJ., concur.