State v. Drain

• Decision Date: 06 March 1928
• Docket Number: No. 39026.,39026.
• Citation: 218 N.W. 269,205 Iowa 581
• Parties: STATE v. DRAIN.
• Court: Iowa Supreme Court

205 Iowa 581

218 N.W. 269

STATE

v.DRAIN.

No. 39026.

Supreme Court of Iowa.

March 6, 1928.

Appeal from Municipal Court of Waterloo; J. C. Beem, Judge.

This was a prosecution of the defendant by information under the 1924 Code, § 1936, for the illegal transportation of intoxicating liquors not properly marked or labeled. The court sustained a motion for a directed verdict on defendant's behalf, and the State appeals. Affirmed.John Fletcher, Atty. Gen., and F. W. Edwards, Co. Atty., and Ralph William Travis, Asst. Co. Atty., both of Waterloo, for the State.

C. J. Rudolph, of Waterloo, for appellee.

KINDIG, J.

On the 29th day of September, 1927, in the municipal court below, there was filed against Joe Drain, appellee, as defendant, the following information:

“The defendant (Joe Drain) is accused of the crime of illegal possession of intoxicating liquors illegally transported and not properly marked, for that the defendant, on the 28th day of September, 1927, at the city of Waterloo, in the county of Black Hawk, state of Iowa, did unlawfully and willfully receive, keep, and have possession of certain intoxicating liquors, the said intoxicating liquors having been illegally transported and conveyed, and the containers of same not being marked and labeled as by law required, contrary to the statutes in such case made and provided. * * *”

To this a plea of “not guilty” was entered, and on October 3d the cause came on for trial, at which time the following evidence was introduced:

One Dosson had driven his automobile upon the streets in such manner as to splash mud on the defendant, and the latter followed the driver and his machine to the Dosson home, a distance of two blocks. When the defendant arrived there, he attacked Dosson, struck, and knocked him down. While so doing, there fell from the defendant's inside coat pocket a half pint of whisky.

Thereupon a motion was made asking the court to direct a verdict in defendant's favor, for the reasons:

“(1) That the evidence fails to establish the guilt of the defendant. * * *

(6) That the statute under which said information is drawn, and to which the same refers, has reference to transporting liquor for hire by transporting companies, and does not have reference to the possession of liquor for legal or legitimate purposes. * * *

(8) That on the whole record the state has not proved sufficient upon which to base a conviction of this defendant.”

That contention was sustained, and about this the state complains.

Basis for reversal is founded upon these two propositions: First, the trial court wrongfully cast upon the state the burden of showing transportation of liquor, and this attitude of the court was incorrect, the state asserts, because the gist of the offense is not transportation, but the possession or keeping, of liquor without proper marks or labels, as required by said section of the Code; and, second, it erred in holding that there was no evidence of liquor transportation.

Those disputes will be considered in the order made.

[1] I. A companion case, State of Iowa v. Anna Edwards (Iowa) 218 N. W. 266, decided at the March period of the current term, disposes of the state's first claim of error.

In the Edwards Case we said:

“The ground of the court's holding was that no evidence was offered of illegal transportation of the liquors or of the receipt of the same by the defendant through illegal transportation within the provisions of section 1936. It is from this judgment that the state has appealed. The contention for the state is that the question of preceding illegal transportation of the liquors in question is immaterial and has no bearing upon the offense charged against the defendant. It is argued that the mere possession of the liquors by the defendant in containers which were not marked or labeled, as required by section 1936 was of itself a violation of that statute. * * * We think the state is not justified in the interpretation it puts upon section 1936. * * * We see no escape from holding that the illegal transportation of liquors as not being properly marked or labeled, and that the defendant became party thereto by illegally receiving the same into her possession, is the gist of the offense charged herein [the information].”

Such being true, it is quite impossible in the case at bar to separate the “possession or keeping of liquor not properly marked or labeled” from the “transportation.” Restating the thought in another way, the “offense” includes: First, the transportation; and, second, the lack of proper marks or labels.

No other conclusion is possible when consideration is given to the entire legislative enactment, as embodied in sections 1934 to 1943, both inclusive.

II. Our attention will now be directed to the second assignment made by the state relating to the “transportation.”

The pleader narrowed the scope of his “information” to said section 1936, which refers to “transportation of intoxicating liquors in vessels or other packages containing such * * * plainly and correctly labeled or marked.” Manifestly, there is a distinction between section 1936 and section 2058 of the same Code. Different objects were aimed at through these separate and distinct legislative acts. Analysis will elucidate at this point. Section 2058 is:

“Any person, firm, or corporation, and any agent or employee thereof, who engages in the transportation of intoxicating liquors shall for each act of transporation be fined in a sum not exceeding one thousand dollars or be imprisoned in the county jail not exceeding one year or be punished by both such fine and imprisonment and pay the cost of prosecution, including a reasonable attorney fee to be taxed by the court.”

Necessary to a complete understanding of this is the consideration of the next succeeding section (2059), containing this language:

“In any prosecution under this title for the unlawful transportation of intoxicating liquors it shall be a defense:

1. That the character and contents of the shipment or thing transported were not known to the accused or to his agent or employee. or

2. That the purchase and transportation of said liquors was authorized by a law of this state.”

Interpretation of those provisions was made by us in State v. Casebolt, 201 Iowa, 574, 207 N. W. 566. Less extensive in its sphere is section 1936, for it is limited to the purposes expressed by its context and associate sections.

“Transportation” is defined by Webster's New International Dictionary as:

“Act of transporting, or state of being transported; carriage; removal; conveyance.”

But that generalization will not suffice here, for the reason that we are confined to the particular act of “transportation” within the purview of section 1936, which is, to a marked extent, more limited than section 2058.

Returning again to the Anna Edwards Case, supra, we find these declarations:

“It will be noted that section 1934 deals with the consignor of intoxicating liquors in transportation and makes him liable to punishment for failure to properly mark and label, etc. The first sentence in section 1936 provides punishment for the carrier, who shall transport such liquors which are not properly marked or labeled. The second sentence of 1936 provides punishment for the consignee. * * * This proviso was first incorporated into the statute by the Twenty-Second General Assembly, and is to be found in section 2421 of the Code of 1897. At the time of such enactment intoxicating liquors could be legally transported under certain designated conditions. But much...