State v. Fountain

• Decision Date: 24 June 1918
• Docket Number: 31926
• Citation: 168 N.W. 285,183 Iowa 1159
• Parties: STATE OF IOWA, Appellee, v. FRANK FOUNTAIN, Appellant
• Court: Iowa Supreme Court

168 N.W. 285

183 Iowa 1159

STATE OF IOWA, Appellee, v. FRANK FOUNTAIN, Appellant

No. 31926

Supreme Court of Iowa, Des Moines

June 24, 1918

Appeal from Polk District Court.--CHARLES HUTCHINSON, Judge.

THE defendant was convicted of maintaining a liquor nuisance, and appeals.

Affirmed.

T. L Sellers, for appellant.

H. M Havner, Attorney General, F. C. Davidson, Assistant Attorney General, C. G. Watkins, and Ward C. Henry, County Attorney for appellee.

LADD, J. PRESTON, C. J., EVANS and SALINGER, JJ., concur.

OPINION

LADD, J.

The defendant, with one Roberts, was indicted, April 6, 1917, for having maintained a place wherein intoxicating liquors were sold and kept with intent to sell. Both were found guilty. Roberts was granted a new trial, and a fine of $ 1,000 was imposed upon defendant, Fountain.

I. He challenges the sufficiency of the evidence to sustain his conviction. With one De Bolt, he operated what is known as a "Temp Bar," at the corner of West Second Street and Grand Avenue, in the city of Des Moines, and for himself, conducted a garbage business. On March 21, 1917, policemen searched the premises for intoxicating liquors, and found two pints of whisky on the shelf under the bar, and, back of the bar, a government liquor license, in De Bolt's name; and, in an old store building, nearly half a block distant, where he kept his garbage cans, found a garbage can, among about 100 others, in which there were 14 pints of whisky in pint bottles; and in the hay, another pint of whisky, also 12 or 14 empty bottles; and in the desk of his office, 7 bottles of whisky.

De Bolt testified that he had purchased the two bottles of whisky found under the bar, to take to his wife, who was sick; and Fountain explained that the government license had been procured under the advice of "revenue men," in order to avoid trouble, and that, after consulting one Weimer, the license was procured. He denied having knowingly or intentionally permitted the clerk, barkeeper, employee, or partner to sell intoxicating liquors at the place or at the time in question, and swore that he did not attend the bar; that he bought the liquor found in the old storeroom, or barn, the night before, but not with intent to sell or to have it sold, by himself or anyone else; that this liquor came in two packages, which he placed in the can, and some of the boys working there took two or three bottles out; that he bought this liquor from somebody who came around with it; that he intended to take that in his desk home with him; and further:

"I always kept whisky, and gave them (the men employed in the garbage business) what they wanted. It is hard to get a fellow to work in the scavenger business unless you give them a little drink, and that is why I appeal this case. I have been 30 years in the business, and have always kept liquor for them. There are lots of fellows you cannot get to work unless you give them a little of whisky to drink. Some days it was raining, and they came in, cold and wet, and I would get out a bottle; and sometimes I would bring a few into the office, so they would not know where it was. If I left it out where they could get their hands on it, they might drink it all up at once."

He testified, further, that he got no pay from the boys, and that De Bolt knew nothing of this. It is manifest, from this recital of the evidence, that the issue as to defendant's guilt was for the jury. Presumption thereof was raised, both by the finding of the revenue stamp and by the keeping of intoxicating liquors. Sections 2382, Code Sup plement, 1913, and 2427, Code. Whether his explanation was sufficient, was for the jury to determine. If kept for the purpose of illegal sale, this was done about as one would in concealing it from the officers of the law. On the other hand, if it was kept solely for personal use, or for the purpose of giving it away, without any consideration whatever, the defendant should not have been convicted. The issue, as said, was solely for the jury.

II. One Dawson operated a horse-shoeing shop, next to the old barn, or store; and, owing to objection's being sustained, was not permitted to say whether he had observed any whisky sales at the "Temp Bar," or persons purchasing whisky or congregating there, or persons going there, or anything indicating that liquors were being sold there, or persons going in and out of there for the purpose of trading or purchasing anything, or whether he attempted to purchase whisky and was refused, or whether he saw anyone drink intoxicating liquor there. The several rulings were correct. The answers, if given by Dawson, would have had no bearing on the issue, except as to defendant's want of knowledge, and whether he had obtained intoxicants there,-- neither of which the State had sought to prove. The character of the general business carried on by defendant and De Bolt was not in dispute, so that this did not furnish ground for the interrogatories; and, in any event, to inquire into the details of their business, save as these related to the sale or keeping for sale of intoxicants, was not relevant to the issues. There was no error.

III. The defendant was asked:

"Was there ever any intent on your part that intoxicating liquors should be sold at that place? A. Mr. Roberts would testify that I have often told him not to let a man have a bottle there."

On motion, this was stricken, as incompetent, irrelevant and immaterial. The ruling was correct; as it was immaterial what Roberts might, but did not, testify to.

"Q. Did you instruct your barkeeper to not sell intoxicating liquors? (Objection as suggestive was sustained.) Q. What instructions did you give your barkeeper with reference to selling intoxicating liquors at that place? (The same objection was sustained.)"

These rulings are said to have been erroneous; but, if so, this was obviated by his...