State v. Herselus

• Decision Date: 10 October 1892
• Citation: 53 N.W. 105,86 Iowa 214
• Parties: STATE v. HERSELUS.
• Court: Iowa Supreme Court

86 Iowa 214

53 N.W. 105

STATE

v.HERSELUS.

Supreme Court of Iowa.

Oct. 10, 1892.

Appeal from district court, Jasper county; A. R. DEWEY, Judge.

Defendant was indicted under section 1543 of the Code for the crime of nuisance. The case was tried to a jury, and, upon the conclusion of the evidence for both parties, the court, upon its own motion, instructed the jury to find the defendant not guilty, which was done, and judgment entered discharging the defendant. The state appeals.W. G. Clements, for the State.

GIVEN, J.

1. By the testimony of several witnesses, it was shown, without contradiction, that within the time and in the county named in the indictment, the defendant did, on different occasions, sell beer and whisky over the counter of a certain saloon, and received pay for the goods sold. The defendant in his testimony admits that he did, on several occasions, sell intoxicating liquors in that saloon. His testimony shows that Gus Anderson and Andy Pierson kept the saloon for three or four months; that defendant was engaged in the business of coal mining; that he resided near the saloon, and frequently, when not engaged at his work, helped about the saloon in bringing water, and, as he says, pulling corks and dishing out beer into the glasses. He states that he “handed out beer for Gus Anderson when he was in the saloon;” that he did so at the request of Anderson, “as an accommodation to him, probably more than half a dozen times.” The defendant further states “that he never paid me nor gave me any consideration. I never asked him for any. I did it just as an accommodation.” He also states: “I was in no way interested in the saloon while it was running. I did not own the ground or pay rent on the building, or have any share in the profits of the saloon. I did not get any compensation. They did not pay me anything for my work.”

The instruction ordering a verdict of not guilty must have been upon the theory that, as the defendant was in no way interested in the saloon, did not own the ground, have any share in the profits, nor receive any compensation for his services, he was not guilty, under the law. This, we think, is a mistaken view of our statute. Section 1542 of the Code provides that “no person shall own or keep, or be in any way concerned, engaged, or employed in owning or keeping, any intoxicating liquors with intent to sell the same in this state, or to permit the same to be sold therein, in violation of the provisions...