State v. Boever
| Decision Date | 26 October 1926 |
| Docket Number | No. 37907.,37907. |
| Citation | 203 Iowa 86,210 N.W. 571 |
| Parties | STATE v. BOEVER. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Plymouth County; B. F. Butler, Judge.
Defendant was indicted, tried, and convicted for the crime of unlawfully having intoxicating liquor in his possession, contrary to the provisions of chapter 94, title 6, of the Code of Iowa 1924 and acts amendatory thereto. From a judgment imposing a sentence of three months in the county jail and a fine of $300 and costs, the defendant appeals. Affirmed.Ben J. Gibson, Atty. Gen., Herbert A. Huff, Asst. Atty. Gen., and Geo. W. Sturges, Co Atty., of Le Mars, for the State.
Kass, Zink & Kass, of Sioux City, for appellant.
DE GRAFF, C. J.
[1][2] The instant indictment is based on section 1924, Code 1924 chapters 44 and 45, Acts of the Forty-First General Assembly of Iowa. It is therein provided inter alia that no one by himself, agent, or servant shall for himself or any person else keep for sale, or have possession of, any intoxicating liquor, except as provided in title 6 of the Code of Iowa. It is further provided that whoever is found guilty of violating any of the prohibited acts as defined in section 1924 shall be punished as a bootlegger (section 1926, Code 1924), and the penalty is prescribed by section 1927, Code 1924, chapter 46, Acts of the Forty-First General Assembly. It is obvious, therefore, that the act charged in the indictmentis a misdemeanor, defined and punished by the Criminal Code of Iowa. The statute is the ipse dixit in this particular, and the court is not concerned with the wisdom or policy of the legislative enactment.
[3][4] There is no reason for the application of any rule of construction. The prohibition of the law is plain that no one shall keep for sale, or have possession of, any intoxicating liquor, except as provided by law. The defendant, as the possessor of liquor, was entitled to show, in defense, that the liquor found in his possession was legally in his possession. In brief, the statute prescribes certain defensive matter (section 2, c. 42, Acts of the Forty-First General Assembly) which, if established by the defendant, constitutes a defense to the accusation. No obligation rests upon the state to allege and prove the provisos or to negative the exceptions in the instant indictment. See State v. Kendig, 133 Iowa, 164, 110 N. W. 463.
The defendant entered two pleas: (1) Not guilty; (2) former acquittal.
Upon the conclusion of all the testimony, the defendant filed a motion for a directed verdict of “not guilty” on the following grounds: (1) The insufficiency of the evidence to justify a verdict of guilty; (2) that the same facts, transactions, evidence, and crime charged in the instant indictment were included in an indictment against this defendant in a former case accusing him of the maintenance of a liquor nuisance, and upon trial thereof a verdict of not guilty was returned by the jury; (3) that the same facts, acts, evidence, transactions, and charge in the instant indictment were necessarily included and a part of the charge, crime, evidence, and transactions in the former indictment on which the defendant had been acquitted. These matters were further recited by the defendant in his motion of arrest of judgment and for a new trial. It is to these propositions that we now give consideration.
[5] The evidence is amply sufficient to sustain the verdict. It is undisputed that at the time the premises of the defendant were searched under a lawful search warrant a gallon jug of “hootch” was found in a gunny sack in the pantry, and a 15-gallon keg of hootch was found planted in the ground under a shed 8 or 10 rods from the house. This liquor, when analyzed, disclosed 49.8 per cent. alcohol by volume. It is also shown that the defendant resisted the search, and, as the officers attempted to go into the pantry, the defendant called to a man in the house “Dump it, Ed.” In passing, it may be said that the defendant offered no evidence in explanation of his possession of the liquor in question.
[6] It is contended by the appellant that the seized liquor was not competent evidence and admissible against him, for the reason that said liquor had not been adjudicated to be intoxicating liquor, and declared forfeited by the court issuing the search warrant. This claim is untenable. It is true that under the provisions of chapter 42, Acts of the Forty-First General Assembly, the finding of intoxicating liquor in the possession of, or under the control of, any person under and by authority of a search warrant, “and which shall have been finally adjudicated and declared forfeited by the court, shall be prima facie evidence, in any action, criminal or civil,” under the provisions of title 6 of the Code of Iowa 1924. This statute provides a rule of evidence relating to the effect of the possession of liquor that has been seized and adjudicated as intoxicating, but it does not contemplate that the facts and circumstances with...
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