McMillan v. Anderson
| Decision Date | 20 May 1918 |
| Docket Number | 32106 |
| Citation | 167 N.W. 599,183 Iowa 873 |
| Parties | C. N. MCMILLAN, Plaintiff, v. J. W. ANDERSON, Judge, Defendant |
| Court | Iowa Supreme Court |
Certiorari to Woodbury District Court.--J. W. ANDERSON Judge.
WRIT of certiorari was issued on application of plaintiff, to which return was made, and the record is here for review.--Annulled.
Order annulled, and cause remanded.
John F Joseph, for plaintiff.
E. E Baron, for defendant.
Barney Kopel, during the period in question, occupied the second story of the dwelling house known as 1216 Sixth Street, Sioux City, as a residence. On May 25, 1917, a decree of court enjoined him from maintaining his place of residence as a liquor nuisance. Thereafter, on August 6, 1917, the plaintiff herein filed an information, alleging that Kopel had violated the terms of the decree by selling and keeping for sale in his residence intoxicating liquors, and therefore was guilty of contempt of court. A precept was thereupon issued, requiring Kopel to be brought before defendant herein, as judge of the fourth judicial district, which was done, and he denied the charge; but, upon hearing, he was found not guilty. Thereupon, a writ of certiorari was sued out, bringing the proceedings here for review. The evidence discloses that, on July 23, 1917, shortly after 2 o'clock in the afternoon, four policemen searched the premises of Kopel for intoxicating liquors, and found eight gallons and eight quarts of whisky in the attic, to which there was neither stairway nor ladder. It was reached by having one of them climb on another's shoulders and crawl through a hole in the ceiling. The attic was unfinished, and empty, save for this whisky and a couple of empty bottles and a broken one. The eight quarts were in quart bottles in a beer crate. The eight gallons were in jugs, which were in cartons. On the other hand, defendant, who had resided in Sioux City about twelve years, testified that his occupation, since the entry of the decree, had been buying iron and junk in the country and shipping by the carload to Sioux City; that he usually returned to the city Saturday, stayed over Sunday, and went back to the country on Monday; that the liquors belonged to him; that he bought the liquor found, and no more, at Jefferson, South Dakota, some time in May.
Witness further testified that, prior to May 1st, he had dealt in intoxicating liquors.
"
He testified that he had used none of the liquor since obtaining it, but that "just had a bottle, not very much," in his house.
The fact of finding intoxicating liquors in unusual quantities in a private dwelling house or its dependencies is "presumptive evidence that such liquors are kept for illegal sale." Sec. 2427, Code. The law does not prescribe a test or criterion by resort to which we may ascertain what quantity of intoxicating liquors is to be regarded as usual, and how much more must be added to render the quantity "unusual." Much depends upon the character of the liquor. There may be so much of any kind, however, as to put the inquiry at rest, and we are of opinion that ten gallons of whisky is an unusual quantity to be found in a private dwelling house.
The only other inquiry is whether the accused has, by his showing, overcome the presumption of guilt which otherwise must obtain. His sole contention is that he was keeping the whisky for the use of himself, family, and wife. But how many compose his family, or whether any member thereof or his wife used whisky as a beverage, was not disclosed. Even the accused only claimed to take "a little drink." Though claiming to have kept the seized whisky for use in his family, none had been drunk for two months; and this was explained by saying he "just had a bottle, not very much." This evidence falls far short of rebutting the presumption of guilt. In the first place, the quantity exceeded many times the amount of liquor of that kind likely to be kept on hand in the home by a family making use of it as a beverage; and in the second place, Kopel's testimony does not show that he or his family so used it. Indeed, it could have been consumed by either only in exceedingly small quantities; for "a bottle, not very much," appears to have lasted more than two months. The accused utterly failed to obviate the presumption of guilt of keeping the whisky for the purpose of unlawful sale; and for this reason, he should have been found guilty of contempt, in that he violated the terms of the decree enjoining him from keeping for sale or selling intoxicating liquors on the premises. See State v. Thompson, Judge, 130 Iowa 227, 106 N.W. 515; State v. Hale, 91 Iowa 367, 368, 59 N.W. 281; State v. Wilson, 152 Iowa 529, 132 N.W. 820; Shidler v. Keenan Bros., 167 Iowa 70, 148 N.W. 972.
We give no consideration to the evidence that Kopel had the reputation of being a bootlegger, and that the place where he lived was reputed to be a place where intoxicating liquors were kept and sold. The trial court rightly ruled such evidence not admissible. Section 2406 of the Code Supplement, 1913, authorizes the consideration of evidence of the general reputation of a place in determining whether such a liquor nuisance exists as shall be enjoined; but the section following, relating to prosecution of contempts in violating injunctions issued under said Section 2406 contains no such provision; and, of course, in the absence of statute so authorizing, evidence of this kind may not be received. It is not to be overlooked that the accused claimed to have procured the whisky prior to the entry of the decree, but that this was done, according to his story, after he had quit the business of selling intoxicants in violation of law, on May 1st, and for his personal use and that of his family. Had he admitted having procured it for illegal disposition, and claimed that, as this was prevented by the decree, it had remained there since, without design to sell or use, an entirely different question would have been presented. Undoubtedly, this was not true; else he would have so asserted, instead of claiming that he had purchased for use of himself and family,--which, as we think, the evidence conclusively failed to establish. In other words, the evidence utterly failed to meet the presumptive evidence of guilt raised by keeping whisky in unusual quantities in his dwelling house; and there is no escape from the conclusion that the accused is guilty of contempt of court, in that he violated the injunction against keeping for unlawful sale. No mere stage performance can obviate...
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Joyner v. Utterback
... ... being a place where intoxicating liquors were kept and sold, ... was not admissible. McMillan v. Anderson, 183 Iowa ... 873, 167 N.W. 599. Evidence of this character was admitted by ... the court subject to the objection that was interposed ... ...
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Joyner v. Utterback
...and of the place where he lived as being a place where intoxicating liquors were kept and sold was not admissible. McMillan v. Anderson, 183 Iowa, 873, 167 N. W. 599. Evidence of this character was admitted by the court subject to the objection that was interposed. What we have already said......
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State v. Butler
...that his finding should be set aside because this court believes the amount of liquor found was excessive. See dissent in McMillan v. Anderson, 167 N. W. 599, for one. But that is not the question here. The present decision is that the jury can on appellate review be sustained in finding th......
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State v. Butler
... ... set aside because this court believes the amount of liquor ... found was excessive. See dissent in McMillan v ... Anderson, 183 Iowa 873, 167 N.W. 599, for one. But that ... is not the question here. The present decision is that the ... jury can, on ... ...