State v. Hale

• Decision Date: 24 May 1894
• Citation: 91 Iowa 367,59 N.W. 281
• Parties: STATE v. HALE.
• Court: Iowa Supreme Court

91 Iowa 367

59 N.W. 281

STATE

v.HALE.

Supreme Court of Iowa.

May 24, 1894.

Appeal from district court, Polk county; C. P. Holmes, Judge.

Defendant was indicted and convicted of a liquor nuisance, and appeals. Affirmed.A. A. Haskins, for appellant.

John Y. Stone, Atty. Gen., and Thos. A. Cheshire, for the State.

KINNE, J.

1. It is urged that the evidence is insufficient to support the verdict. It appeared that defendant was seen in and about No. 418 Court avenue; that the room was a business place; that the front part was partitioned off, and used as a restaurant; that the partition was about five or six feet high; that the back part of the room contained a bar, and that beer and other intoxicants had often been seized there; that when searches were made in that place for intoxicating liquors the warrants were sometimes served on the defendant; that he once stated how long he was going to run there. It appears also that defendant was sometimes seen in this back room. From all the evidence the jury were warranted in finding defendant guilty.

2. Defendant complains of the refusal of the court to give an instruction asked by him, the gist of which was that the finding of beer in the room in question could not in any way be used to connect the defendant with the place and nuisance, if one existed, and that the presumption raised by the statute from the finding of liquors did not extend to in any way establishing the connection of the defendant with the establishing or maintaining of a nuisance. The jury were properly instructed by the court as to what facts they must find in order to convict the defendant. Besides, we think the instruction as framed was objectionable in that it conveyed the idea that the finding of liquors in that room was no evidence that they were owned or kept for sale by the defendant. Being in a room occupied and used by him, the finding of liquors there was presumptive evidence that they were owned or kept by him for illegal purposes.

3. It is insisted that in a prosecution for maintaining a liquor nuisance no presumption arises from finding intoxicating liquors; that such presumption only arises when the proceeding is under Code, § 1542. Our statute provides: “In all actions, prosecutions and proceedings under the laws of this state prohibiting the illegal manufacture and sale of intoxicating liquors, the finding of such liquors, except in the possession of one legally authorized to sell the same or except in a private dwelling house, which does not include or is not used in connection with a tavern, public eating house, restaurant, grocery or other place of public resort, shall be presumptive evidence that such liquors were kept for illegal sale; and proof of actual sale shall be presumptive evidence of illegal sale.” Acts 21st Gen. Assem. c. 66, § 8. Under this statute the instruction complained of was correct. State v. Fleming (Iowa) 53 N. W. 234.

4. The jury retired to deliberate on their verdict at 10:30 o'clock a. m., December 6, 1892, and were called into the court room at 2:45 p. m. of the same day. The jury were questioned by the court with a view of ascertaining whether their disagreement related to a matter of law or fact, and, it appearing that the differences arose out of a disagreement as to both the law and facts, the court gave them a further instruction as to the law, and they again returned to the jury room. During the time that the jury was in the...