State v. Hesner

• Decision Date: 23 March 1881
• Citation: 8 N.W. 329,55 Iowa 494
• Parties: THE STATE v. HESNER
• Court: Iowa Supreme Court

8 N.W. 329

55 Iowa 494

THE STATE v. HESNER

Supreme Court of Iowa, Des Moines

March 23, 1881

Appeal from Clayton District Court.

THE defendant was convicted of the crime of selling to one George Ward intoxicating liquor known as whisky, without a permit. Having been sentenced to pay a fine of $ 20, he appeals from the judgment.

REVERSED.

Stoneman & Chapin, for appellant.

J. F. McJunkin, Attorney General, for the State.

OPINION

ADAMS, CH. J.

The defendant complained of an instruction given by the court which is in these words: "You are instructed that if you find from the evidence, beyond a reasonable doubt, that the defendant himself, or by another in his saloon, sold to the said George Ward intoxicating liquor of any kind, whether whisky or any other kind of intoxicating liquor, your verdict will be against the defendant, guilty."

The correctness of this instruction is questioned upon two grounds. First, it is said that the defendant, having been accused of selling whisky, could not be properly convicted of having sold intoxicating liquor of a different kind, and, in the second place, it is said that if the liquor sold was beer or native wine the defendant would not be guilty, notwithstanding such liquors are intoxicating.

The liquor was described with unnecessary particularity. Code § 1540. State v. Whalen, 54 Iowa 753, 6 N.W. 552. But in State v. Newland, 7 Iowa 242, it is held that, where a thing necessary to be mentioned in an indictment is described with unnecessary particularity, the thing must be proven as described. It appears to us, therefore, that the instruction cannot be sustained, and the judgment must be

REVERSED.