State v. Cloughly

• Decision Date: 21 December 1887
• Citation: 73 Iowa 626,35 N.W. 652
• Parties: STATE v. CLOUGHLY.
• Court: Iowa Supreme Court

73 Iowa 626

35 N.W. 652

STATE

v.CLOUGHLY.

Supreme Court of Iowa.

December 21, 1887.

Appeal from district court, Audubon county; H. E. DEEMER, Judge.

The defendant, J. F. Cloughly, was convicted of the crime of nuisance by the verdict of a jury, and the court pronounced judgment imposing upon him a fine of $500.John M. Griggs and Theo. F. Myers, for appellant.

A. J. Baker, Atty. Gen., for the State.

REED, J.

It is charged in the indictment that defendant kept a building and place in which he kept intoxicating liquors, with intent to sell the same contrary to law, and in which he sold such liquors contrary to law. The indictment was entered on the twenty-seventh day of August, 1886, and it alleged that the offense was committed on the first day of that month. The defendant is the proprietor of a drug store. He is also a registered pharmacist; and on the ninth day of June, 1886, the board of supervisors of the county issued to him a permit to buy and sell intoxicating liquors for the actual “necessities of medicine.”

1. It is first insisted that the verdict is not supported by the evidence. There was evidence, however, which tended to prove at least one sale of whisky in defendant's drug store before the date of his permit. It is true that the sale was not made by defendant in person, but the jury might well have found that it was made from his stock, and by a clerk in his employ. At that time defendant had no authority to sell liquors for any purpose. The sale was unlawful, and the jury might have found from the evidence that it was made by the clerk in the ordinary course of his employment. There was also evidence which tended to prove numerous sales after the permit was granted, some of which the jury might have found were not for “the actual necessities of medicine.” It was proven that on one occasion a person applied to defendant to purchase a bottle of beer, and that defendant sold and delivered to him a bottle of liquor which had the appearance of beer. The customer, who was examined as a witness on the trial, was not able to testify with certainty that the liquor in the bottle was beer. It is insisted that there was not sufficient evidence either as to the kind of liquor sold, or that it was intoxicating. As the defendant, by delivering it to the customer in answer to his request for beer, represented it to be that kind of liquor, the prosecution as against him is that it was beer, and the statute classes beer as an intoxicating liquor. Chapter 8, Acts 20th Gen. Assem. If there are kinds of beer not in fact intoxicating, the burden was on defendant to show that the beer in question was of that kind, if he claimed such to be the fact. It is clear that we...