State v. Christensen
| Decision Date | 13 December 1927 |
| Docket Number | No. 38224.,38224. |
| Citation | 205 Iowa 849,216 N.W. 710 |
| Parties | STATE v. CHRISTENSEN. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Butler County; M. F. Edwards, Judge.
Indictment for illegal possession of intoxicating liquor. Defendant was convicted and appeals. Affirmed.John H. Meyers, of Waterloo, for appellant.
John Fletcher, Atty. Gen., Neill Garrett, Asst. Atty. Gen., and B. H. Brauer, Co. Atty., of Allison, for the State.
The evidence shows in substance that the sheriff and assistants had a warrant to search defendant's premises. Defendant told them that he had no liquor and go ahead and search. Defendant was asked to open a safe in his blacksmith shop, which he did. Defendant took out and handed to the officers a half pint bottle of intoxicating liquor two-thirds full. Defendant's evidence is to the effect that his son had had the earache; that the physician recommended that defendant get some alcohol with which to treat it; that defendant without any prescription did get from a druggist the bottle of alcohol; that defendant bought it only for medicinal purposes and used it for no other.
At the time of the search, situated about a block and a half from his blacksmith shop, defendant had a chicken ground of about a half acre, fenced and having on it chicken coop and well. On three sides of the chicken yard were streets, and on the other a railroad track. The officers went from the blacksmith shop to the chicken ground, and there found two pint bottles in a chicken nest covered with straw. The bottles were full of intoxicating liquor. Defendant testified that he had not before seen those bottles; did not know of them, or that they were on his property, until they were found by the officers. He offered evidence that he raised chickens for show purposes; the chicken yard was never kept locked; that the chicken coop was always open; that men working for the railroad company, in the stockyards, and for the waterworks were seen in and around the chicken coop and lot many times.
[1] I. The sheriff took possession of the bottles, and labeled them “seized in Fred Christensen shop in the safe” (and “from Fred Christensen in chicken nest in chicken house”), “July 29, 1925, H. W. B.” Because of these labels the defendant objected to the reception of the bottles in evidence. The court, in overruling the objections, instructed the jury that the labels were not to be considered by them, and that the only thing in evidence in connection with the exhibits was the bottles themselves and their contents. There was no error and no prejudice.
[2] II. The justice who issued the search warrant was not a witness before the grand jury. He was called at the trial, and over objection identified his transcript of the search warrant proceedings. The transcript was admitted over objection. Afterwards the court struck from the record the justice's testimony and the transcript, and instructed the jury not to take such transcript or testimony into consideration. There was no prejudice.
[3][4][5] III. The defendant, at the conclusion of the introduction of evidence in behalf of the state, moved the court to require the state to elect whether it would proceed as to the possession of the liquor found in the blacksmith shop or as to the possession of that found in the chicken coop. The indictment was for the illegal possession of “three pints of alcohol or moonshine contained in half pint bottles, with intent,” etc. The indictment did not distinguish between the bottles in respect to the time or place of their possession or otherwise. The particular location of either or all of the parcels of liquor in defendant's possession was not of the essence of the offense charged, and was not specified in the indictment.
Possession may be quite transitory and variable in place. The two properties, the...
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