State v. Healy, 42158.
| Decision Date | 12 December 1933 |
| Docket Number | No. 42158.,42158. |
| Citation | 251 N.W. 649,217 Iowa 1155 |
| Parties | STATE v. HEALY. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Cass County; E. M. Miller, Judge.
Defendant was indicted for unlawfully having intoxicating liquor in his possession. It was charged as a second violation of the liquor laws of the state. The case was tried to a jury which returned a verdict of guilty. Defendant appeals.
Affirmed.
G. C. Dalton, of Atlantic, for appellant.
Edward O'Connor, of Des Moines, for the State.
The defendant ran a restaurant in the town of Cumberland, Iowa. Peace officers visited his place of business on the night of May 14, 1932, and as a result of such visit he finds himself in his present difficulty. The officers say that upon arrival defendant was asked to surrender a bottle which he had in his pocket, but that, instead of complying with such demand, the defendant pulled the bottle from his pocket and proceeded to dump its contents on the floor. One of the officers grappled with defendant in an effort to prevent the dumping, with the result that the defendant and the officer both found themselves on the floor, and of course, the bottle was likewise thrown upon the floor. The bottle was picked up from the floor following the mêlée, and the officers say it was practically empty, but that, judging from the smell, its contents were alcohol. Some of the contents of the bottle were spilled on the officers' clothes and on the floor. The officers say that the fluid spilled on such clothes, judged by smell, was alcohol, and that the spots on the floor, where the liquid had been spilled, burned when a match was touched to them. Particular attention is called to the fact that the officers took the bottle, found by them on the floor, and produced it as an exhibit upon the trial of the case. It is described as an ordinary 8-ounce prescription bottle.
The defendant's version of the matter differs in some particulars from that of the officers. He says that a day or so prior to the officers' visit he found a square tin can in the rear of his premises; that such can contained a small amount of liquid; that he told the mayor of the town of his discovery and asked advice concerning the disposition to be made of the can and contents; that the mayor told defendant to bring it to him in order that an analysis might be made of the contents. For some reason, not suggested by the record, the thought did not occur to either the mayor or the defendant that the difficulty could be solved by the simple process of pouring the contents of the can on the ground. But, be that as it may, the defendant concluded to follow the suggestion of the mayor and for that purpose poured the contents of the can into a bottle, not the bottle produced by the officers upon the trial, but into a thinner bottle, which bottle, it is to be noted, defendant produced as an exhibit upon the trial of the case.
On the night of the raid, it appears that a dance was scheduled to be held upstairs in the building in which defendant ran his restaurant. Defendant testified that he was apprehensive of trouble and concluded to get the liquid into the possession of the mayor. A friend of his, who was a witness, declined to do this errand, and the defendant says that he had just taken the bottle in his hand for the purpose of taking it to the mayor, when the officers arrived and his troubles began.
Upon the trial of the case defendant's wife was a witness, and introduced a third bottle into the picture. She testified that shortly before the raid she had purchased witch hazel in a bottle that looked like the one produced by the officers, that she had put the bottle of witch hazel on the ice box in the room where all the trouble occurred, and that she had not been able to find it since.
The situation may best be summarized by calling attention to the fact that the defendant defends the case made against him by the officers' testimony in relation to the 8-ounce prescription bottle and its contents, by bringing into the case another bottle and its contents. That the case of the state and the defense are not based on mistake as to the identity of the bottles is made certain by the fact that the state and the defendant each produced their bottle, and the defendant's witnesses all swore that the bottle into which the contents of the tin can were poured did not resemble the 8-ounce prescription bottle.
[1] I. Appellant complains because the court did not instruct the jury that the facts disclosed by the evidence in relation to the discovery of the tin can and subsequent transfer of its contents into the bottle produced by the defendant, for delivery to the mayor, would, if found to be true, be a justification of the defendant. The trouble with defendant's contention lies in the fact that the state's case rests upon the 8-ounce prescription bottle and its contents. The state was not prosecuting the defendant because of his possession of the contents of the thinner bottle which the defendant produced upon the trial. It was prosecuting the defendant for the possession of the contents of the 8-ounce prescription bottle which it produced. Justification of possession of the contents of one bottle would not be justification for possession of the contents of the other. Defendant's contention might be tenable if he had not so conclusively proven that the bottle produced by the state did not contain the contents of the tin can.
[2] II. Over objection, witnesses for the state were permitted to testify that the contents of the bottle and the liquid spilled on the officers' clothes was alcohol, basing their opinions on the smell of such liquid. The witnesses were properly qualified by their answers, and there was no error in permitting them to express their opinion, based upon smelling the liquid. State v. Ling, 198 Iowa, 598, 199 N. W. 285;State v. Eggleston, 201 Iowa, 1, 206 N. W. 281;State v. Bourgeois, 210 Iowa, 1129, 229 N. W. 231.
III. It is provided by Code, § 1924: “No one, * * * shall * * * have possession of any intoxicating liquor, except as provided in this title.” It is provided by Code, § 1952, that exceptions, which may be proper defense, need not be negatived in the...
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