State v. Brustkern

• Decision Date: 05 September 1969
• Docket Number: No. 53305,53305
• Citation: 170 N.W.2d 389
• Parties: STATE of Iowa, Appellee, v. Arthur J. BRUSTKERN, Appellant.
• Court: Iowa Supreme Court

Page 389

170 N.W.2d 389

STATE of Iowa, Appellee, v. Arthur J. BRUSTKERN, Appellant.

No. 53305.

Supreme Court of Iowa.

Sept. 5, 1969.

Isadore Nadler and Roger F. Rader, Waterloo, for appellant.

Richard C. Turner, Atty. Gen., William A. Claerhout, Asst. Atty. Gen., and Roger F. Peterson, County Atty., for appellee.

SNELL, Justice.

A Black Hawk County jury convicted defendant of the crime of bootlegging in violation of section 123.59, Code of Iowa. He has appealed from the judgment thereon challenging the sufficiency of the evidence to support a conviction under this section. When such contention is made, we view the evidence in the light most favorable to the State.

On Sunday, March 3, 1968, Earl Immer, a member of the Cedar Falls Police Department, entered the Evansdale Hardware and Variety Store in Evansdale operated by defendant. He told defendant he would like a couple of six-packs of beer. When identification was requested he gave a false reference and produced an employment card in the name of David Moon. Immer said he was helping a friend move into Droste's Trailer Park. Defendant then informed the witness he had hard liquor to sell, too, if he wanted some.

Immer asked for four six-packs of beer and two pints of whiskey. Brustkern got the beer out of a cooler and put in on the counter. He then walked to the back of the store, got two pints of Five Star whiskey out of a drawer or cupboard and put them on the counter. Immer paid defendant $9 for the whiskey and $10 for the beer. He put the package prepared by defendant under his arm and left the store. He and another officer labeled the purchases for identification. A chemical test identified the liquid in the two bottles as an alcoholic beverage.

Defendant was charged with violating section 123.59, Code of Iowa, which provides:

"Bootlegger' defined. Any person who shall, by himself, or his employee, servant, or agent, for himself or any person, company, or corporation, keep or carry around on his person, or in a vehicle, or leave in a place for another to secure, any alcoholic liquor as herein defined, with intent to sell or dispense of the same by gift or otherwise in violation of law, or who shall, within this state, in any manner, Directly or indirectly, solicit, take, or accept any order for the purchase, sale, shipment, or delivery of such alcoholic liquors in violation of law, or aid in the delivery and distribution of any alcoholic liquors so ordered or shipped, or who shall in any manner procure for, or sell or give any alcoholic liquors to any minor or interdicted person, for any purpose except as authorized and permitted in this chapter, shall be termed a bootlegger and upon conviction shall be sentenced to the county jail or the penitentiary, in the discretion of the court, for a period not exceeding one year.' (Emphasis added)

The information charged defendant with violation of the italicized portion of the statute.

I. Defendant claims the facts here do not show a violation of the pertinent provisions of section 123.59. He argues they show only an unlawful sale of liquor by defendant on his own premises which is covered by sections 123.3 and 123.91, or 123.60 and 123.61, not the solicitation for future delivery which the statute was intended to prohibit.

The thrust of defendant's argument is that he was guilty of a punishable offense but was prosecuted under the wrong statute. He says in concluding his argument, 'The verdict and judgment in this case should be reversed for the failure of the evidence to support it and a judgment should be entered finding the defendant guilty of a violation of section 123.3 of the 1966 Code of Iowa and the defendant should be given a sentence appropriate to section 123.91 of the 1966 Code of Iowa, which sentence takes into consideration the sentence which he received heretofore in this case.'

The statutory penalties under the different statutes are not exactly the same. Except for a possible desire for a maximum penalty no good reason appears for resort to the statute here involved rather than to a statute clearly applicable.

The exact point was presented in State v. Speedling, 199 Iowa 1218, 201 N.W. 561, decided in 1925. The opinion supports defendant's contention. There a druggist made a sale of 'jake' in his store by taking a bottle off the shelf and handing it to the customer without moving from the place where he was standing. He was convicted of violation of a statute identical to 123.59.

The State there contended the amendment to the statute which added the italicized portion of the statute 'broadened the original statute so as to bring within its purview such an unlawful sale as was made by the defendant at the time in question.' We said:

'If such be true, then the statute has simply twice defined the unlawful sale of intoxicating liquor, and by the mere process of adopting different names to the offense has created a double jeopardy for the same offense. * * * The statute in question was intended to meet a well-developed method of accomplishing unlawful sales of intoxicating liquor without maintaining a place for that purpose. * * * That portion of the bootlegging statute covered by the amendment above set forth is not an attempt to provide punishment for unlawful sales. Such punishment is fully provided for in another statute. The purpose of such amendment was to reach the offender who solicits orders in advance for the purpose of making later shipment and delivery. (Emphasis added)

'this amendment may carry some infirmity. But assuming it to be wholly valid strictly in accordance with its terms, the actual sale or delivery of intoxicating liquor is not essential to its violation. According to its terms, the offense therein defined is complete where an order is solicited or accepted, regardless of whether shipment or delivery is ever thereafter made. It does not purport to have any reference to any present sale or delivery or payment.

'If therefore the state proposed to punish the defendant for unlawful sale of intoxicating liquor, it proceeded under the wrong statute. If it proposed to punish him for the maintaining of a place where intoxicating liquor was kept for sale or sold, it likewise proceeded under the wrong statute.' (loc. cit. 1220 and 1221 of 199 Iowa, loc. cit. 561 of 201 N.W.)

This is the only case we have found dealing with this particular portion of the statute. It has been cited only twice. State v. Kenne, 200 Iowa 1239, 1241, 206 N.W. 247, decided in 1925, and State v. Webb, 204 Iowa 135, 137, 214 N.W. 568, decided in 1927, support the broad statement contained in Speedling as to the purpose of the statute, but deal with the unlawful carrying portion rather than the portion under which defendant was charged here. Neither case involved the point involved here.

The State cites State v. Cambridge, 216 Iowa 1422, 250 N.W. 731, in which defendant was convicted under this section for the sale of intoxicating liquor in his home. The facts are similar but the question raised here was not before the court in Cambridge. The question was the sufficiency of the evidence as to the identity of the defendant. The Speedling case is not mentioned.

State v. Speedling, supra, was decided during prohibition when prosecutions for crimes of this nature were much more common.

We agree that the statute involved in Speedling and here closed a loophole existing under other liquor laws. It reaches 'the offender who solicits orders in advance for the purpose of making later shipment and delivery.' Under the statute 'the offense therein defined is complete where an order is solicited or accepted, regardless of whether shipment or delivery is ever thereafter made.' It does not follow that words may be read out of the statute. The statute does not say that there must be a lapse of time between acceptance of an order and delivery. It does not suggest that prosecutions are limited to situations involving future delivery. It is not limited to situations not covered by other statutes. The sale is not the gist of the offense, but it indicates that there was a direct or indirect solicitation or acceptance of an order.

In the case at bar there was at least an indirect solicitation. Defendant said he had hard liquor to sell if the customer wanted some. The customer asked for two pints of whiskey and four six-packs of beer. Defendant got the beer from a cooler then went to the back of the store and got two pints of Five Star Whiskey. The customer paid for the whiskey and beer. Defendant prepared the package. The customer took the package and left the store. Every element necessary under the statute appeared.

II. The statute says: 'Any person who shall * * * in any manner, * * * solicit, take or accept any order for the purchase, sale * * * or delivery of such alcoholic liquors in violation of law * * * shall be termed a bootlegger and upon conviction shall be sentenced * * *.'

Here defendant solicited, accepted the order for purchase, sale and delivery. The fact that here there was evidence of more than required by the statute and also a violation of another statute does not invalidate a prosecution thereunder.

III. In Speedling, supra, loc. cit. 199 Iowa 1221, loc. cit. 201 N.W. 562, these words indicate the premise for the court's thinking: 'The purpose of such amendment was to reach the offender who solicits orders in advance for the purpose of making later shipment and delivery.' On the basis of this thinking the case rules out situations where there is immediate delivery.

In recent years we have repeatedly said that it is not for us to speculate as to probable legislative intent apart from the wording used.

In Kruck v. Needles, 259 Iowa 470, 477, 144 N.W.2d 296, 301, this appears:

'The intent of the legislature in enacting this statute which is controlling here is to be gathered from the statute itself. It is our duty to give it the interpretation its language calls for and not to...