State v. Cavanaugh

• Decision Date: 07 October 1896
• Citation: 98 Iowa 688,68 N.W. 452
• Parties: STATE v. CAVANAUGH.
• Court: Iowa Supreme Court

98 Iowa 688

68 N.W. 452

STATE

v.CAVANAUGH.

Supreme Court of Iowa.

Oct. 7, 1896.

Appeal from district court, Benton county; G. W. Burnham, Judge.

Indictment for a nuisance. Verdict of guilty, and a judgment. Defendant appealed.Tom H. Milner, Cato Sells, and Matt Gaasch, for appellant.

Milton Remley. Atty. Gen., for the State.

GRANGER, J.

1. The only questions for our consideration are as to the actions of the court in admitting evidence. It appears that, for the period in which it is sought to establish the unlawful keeping and sales, the defendant was engaged in business with one Pierce, who was an accredited pharmacist, with a permit to sell liquors for lawful purposes. Pierce made returns of his sales to the county auditor under the law. On the trial of the indictment the deputy county auditor was a witness, and produced, from the auditor's office, a bimonthly report of Pierce for March and April, 1895, which, upon being identified, was admitted in evidence, as well as certain written requests for liquor. These were objected to, because it was Pierce's report, and the transactions exclusively his. These items of evidence were identified by number. To properly understand the admissibility of this evidence, it is important to understand the circumstances under which it is claimed the sales were made. These are indicated by the following instructions given by the court: “(5) Evidence has been introduced on the trial of this cause tending to prove that the defendant, at and within Benton county, Iowa, and within one year prior to September 10, 1895, was concerned, engaged, or interested with one W. H. Pierce in conducting a pharmacy, and that, while so conducting said pharmacy, said W. H. Pierce held a permit from the district court, in and for Benton county, Iowa, to sell intoxicating liquors for the actual necessities of medicine. If you find from the evidence that the foregoing facts are established, then you are instructed that the defendant would not be guilty for any sales made by the said W. H. Pierce while he had such permit, made in good faith, for the actual necessities of medicine only. But if you find from the evidence beyond a reasonable doubt that any sales so made during said time by W. H. Pierce during the time he held such permit were not made in good faith, and for the actual necessities of medicine, and that the defendant was in any way concerned, engaged, or employed in owning or keeping the intoxicating liquors so sold, and had knowledge of or gave his consent to such sales, then the defendant is guilty, and you should so find.” The instruction, which is not questioned to us, discloses the grounds upon which the reports and requests of sales were admitted in evidence. If Pierce was engaged in the unlawful sale of liquors under color of a permit, and the defendant was in any way aiding in such unlawful sales, knowingly, there could be no question of his guilt, and evidence that tended to show such facts was proper; and it may be said that other evidence leaves little doubt of the fact. A bundle of these requests, known as “Exhibit 119,” was offered in evidence, and objected to, because it appeared from the testimony of the deputy auditor that it was before the grand jury, and not examined by it; and it was urged that “it was not a witness before the grand jury in any sense,” and no notice was given, etc. The court reserved its ruling...