State v. Elmers

• Decision Date: 19 November 1924
• Docket Number: 36353
• Citation: 200 N.W. 723,198 Iowa 1041
• Parties: STATE OF IOWA, Appellee, v. JOHN H. ELMERS et al., Appellants
• Court: Iowa Supreme Court

200 N.W. 723

198 Iowa 1041

STATE OF IOWA, Appellee, v. JOHN H. ELMERS et al., Appellants

No. 36353

Supreme Court of Iowa, Des Moines

November 19, 1924

Appeal from Madison District Court.--W. G. VANDER PLOEG, Judge.

DEFENDANTS were found guilty, upon a trial to a jury, of the crime of maintaining a liquor nuisance. From a judgment upon the verdict they appeal.--Reversed and remanded.

Reversed and remanded.

A. G Rippey and A. W. and Phil R. Wilkinson, for appellants.

Ben J Gibson, Attorney-general, Herbert A. Huff, Assistant Attorney-general, and Leo C. Percival, County Attorney, for appellee.

VERMILION J. ARTHUR, C. J., and EVANS and STEVENS, JJ., concur.

OPINION

VERMILION, J.

The defendants were jointly indicted, charged with the maintenance of a liquor nuisance. They are brothers, and lived upon and jointly operated a farm in Madison County.

The evidence on behalf of the State tended to show that, on August 19, 1923, upon a search of the premises so occupied by the appellants, various appliances, described as gasoline burners, a pressure tank and pump designed for use in connection with the burners, a boiler, and coil, were found detached, in different places on the premises, and some of them more or less concealed. Thirty-five or forty jugs were found, some of them concealed, and two of them containing a liquor. The quantity of the liquor in the jugs, or whether they were full, is not shown. The contents of one of them, found in the cellar, contained 10.38 per cent of alcohol, and that in the other, found in an outbuilding, contained 46.16 per cent of alcohol. Several barrels of so-called mash and many empty barrels were found. The mash contained alcohol, ranging from about four and a half to upwards of eleven per cent. It was the claim of the State that intoxicating liquor was manufactured on the premises. There was testimony that some of the appliances found could be used for that purpose. The defendants denied any ownership or knowledge of some of the appliances, and claimed that the others were used in preparing feed for hogs, and that the so-called mash was such prepared feed.

One witness-testified that he bought five gallons of whisky from the defendant John Elmers in the house, in the presence of Charley, the other defendant; that it was in a jug about the size of one of the jugs found to contain a percentage of alcohol; that John went outdoors and got the jug, and he paid $ 5.00 for it; that he laid the money on the table, and John got it.

Error is assigned on the refusal of the court to strike the testimony of this witness. He testified that, when first called before the grand jury, he had denied buying liquor of the defendants, and that later, on being threatened with a prosecution for perjury, he had testified to the transaction as above set out. He insisted on the trial that his testimony was true; and there was no claim that his testimony at that time was not freely given. This circumstance may have affected his credibility as a witness, but it afforded no ground for excluding his testimony.

The court permitted the various appliances introduced in evidence to go to the jury room. It appears that the members of the jury there connected the pressure tank and burners together. One of the defendants, as a witness, had demonstrated before the jury the manner in which these could be connected and the manner of their use in heating water for slop. There was no prejudicial error in this. State v. Teale, 154 Iowa 677, 135 N.W. 408; Thielepape v. State, 89 Tex.Crim. 493 (231 S.W. 769).

The two jugs that it was claimed were found on the premises, with their contents, were introduced in evidence, and were taken to the jury room. It appears that one of the jurors smelled of the contents, and another tasted them. There is no claim that any of the jurors drank the liquor, or did more than smell and taste it. This was not prejudicial. 16 Corpus Juris 1085; State v. McCafferty, 63 Me. 223; Thompson v. State, 72 Tex.Crim. 659 (160 S.W. 685); People v. Kinney, 124 Mich. 486 (83 N.W. 147); Schulenberg v. State, 79 Neb. 65 (112 N.W. 304); State v. Baker, 67 Wash. 595 (122 P. 335); Reed v. Territory, 1 Okla.Crim. 481 (98 P. 583); State v. Ling, 198 Iowa 598, 199 N.W. 285.

The indictment charged that the defendants "did willfully and unlawfully erect, establish, and use a building and place for the purpose then and there of manufacturing and selling intoxicating liquors." The court instructed the jury, in substance, that, if they found from the evidence beyond a reasonable doubt that the defendants were maintaining a place for the manufacture of intoxicating liquor for the purpose of sale, or for the purpose of keeping liquor therein for...