State v. Hill

• Decision Date: 10 February 1953
• Docket Number: No. 48148,48148
• Citation: 57 N.W.2d 58,244 Iowa 405
• Parties: STATE v. HILL.
• Court: Iowa Supreme Court

Page 58

57 N.W.2d 58

244 Iowa 405

STATE v. HILL.

No. 48148.

Supreme Court of Iowa.

Feb. 10, 1953.

Robert L. Larson, Atty. Gen., Raphael R. R. Dvorak, Asst. Atty. Gen., and M. C. Herrick, County Atty., Indianola, for appellant.

Hall & Ewalt, Indianola, for appellee.

BLISS, Justice.

I. The state appeals under section 793.20, Code of 1950, I.C.A., not to deprive the defendant of the benefit and finality of the judgment, but to determine a question of law inhering in the ruling of the district court, which may be an aid and guide for trial courts in the future. The appeal is proper under the following decisions and authorities cited therein. State v. Traas, 230 Iowa 826, 828, 298 N.W. 862; State v. Schreck, 231 Iowa 542, 543-544, 1 N.W.2d 690; State v. Kellison, 233 Iowa 1274, 1276, 11 N.W.2d 371; State v. Reickenbach, 235 Iowa 731, 17 N.W.2d 530; State v. De Marce, 237 Iowa 648, 649, 23 N.W.2d 441; State v. Tomlinson, 239 Iowa 323, 324-325, 31 N.W.2d 384.

II. It is an ancient rule, which has been long recognized by this Court that penal laws and criminal statutes are inelastic, and are to be strictly construed and not held to include charges plainly without the fair scope and intendment of the language of the statute, though within its reason and policy, and in the event of doubts they are to be resolved in favor of the accused. State v. Lovell, 23 Iowa 304, 305; State v. Julien, 48 Iowa 445, 447; Hanks v. Brown, 79 Iowa 560, 561, 44 N.W. 811; State v. Wignall, 150 Iowa 650, 656, 128 N.W. 935, 34 L.R.A.,N.S., 507; State v. Andrews, 167 Iowa 273, 277, 149 N.W. 245; State v. Campbell, 217 Iowa 848, 853, 251 N.W. 717, 92 L.R.A. 1176; State v. Cooper, 221 Iowa 658, 666, 265 N.W. 915; State v. Brighi, 232 Iowa 1087, 1089, 7 N.W.2d 9; State v. Schultz, 242 Iowa 1328, 1333, 50 N.W.2d 9. Reannouncing this rule, the court in Kuhn v. Kuhn, 125 Iowa 449, 452-453, 101 N.W. 151, 152, quoted with approval, the words of Chief Justice Marshall in United States v. Wiltberger, 5 Wheat. 76, 5 L.Ed. 37; '* * * It is the Legislature, not the court, which is to define crime and ordain its punishment. It is said that, notwithstanding this rule, the intention of the lawmakers must govern in the construction of penal as well as other statutes. This is true. But this is not a new, independent rule which subverts the old. It is a modification of the ancient maxim, and amounts to this: that, though penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the Legislature. The maxim is not to be so applied as to narrow the words of the statute to the exclusion of cases which those words, in their ordinary acceptation, or in that sense in which the Legislature has obviously used them, would comprehend.'

Chapter 124 of the 1950 Code, I.C.A., entitled 'Beer and Malt Liquors', provides in section 124.1, thereof that it is unlawful for any person to sell beer unless he has a permit issued as provided in that chapter. Permits classed as 'A', 'B' and 'C' are provided for in that chapter. The holder of a class 'B' permit is authorized to sell beer on specified premises for consumption, off the premises, and on the premises if consumed with food served and there is equipment to so serve twenty-five persons at one time. Consideration of class 'C' permits may be disregarded in this appeal since, under section 124.10, Code of 1950, I.C.A., they shall be issued only to the proprietor of a grocery store or pharmacy, and defendant was operating a tavern.

Section 124.20, among other provisions not pertinent here, provides: '* * * It shall be unlawful for any person to sell, give or make available to any minor or to permit any minor to purchase or consume any beer on the premises of a class 'B' or class 'C' permit holder, or for any minor to buy or attempt to buy or to secure or attempt to secure beer from any person, and it shall further be unlawful for any person to offer beer, with or without consideration, to any minor, except within a private home and with the knowledge and consent of the parent or guardian of said minor. A violation of the provisions of this paragraph by any holder of a class 'B' or class 'C' permit or any of his agents or employees in connection with the operation of a beer business under said class 'B' or class 'C' permit shall be a mandatory ground for revocation of said permit, in addition to other mandatory grounds provided in this chapter.'

The grand jury of Warren County, Iowa, on March 25, 1952, returned an indictment against the defendant accusing him of the crime of selling beer to a minor, in said county on January 17, 1952, at his tavern in Martensdale contrary to the provisions of section 124.20 of the 1950 Code of Iowa, I.C.A. He pleaded not guilty, and trial was had.

A duly certified photostat from the department of vital statistics showed that the minor was born June 17, 1932. He testified that on the evening of January 17, 1952, the defendant sold him at his tavern in Martensdale, known as 'Ray's Tavern', a bottle of beer which he consumed at the tavern, and a carton of six bottles of beer for which he paid defendant $1.50; that he drank who bottles out of the carton as he was driving on the highway toward his home; that he had previously bought and drank beer in defendant's tavern. Two companions testified to his entering the tavern without any beer and of returning to the automobile with the carton of beer.

A member of the Iowa Highway Patrol testified that on the evening of January 17, 1952, he stopped the car driven by the minor in which his two companions were riding and found the carton with four bottles of beer. He took the minor and the carton with the four bottles of beer to the office of the sheriff of Warren County, who produced them at trial. He and another patrolman and the sheriff testified that on the 18th day of January, 1952, they interviewed the defendant at his tavern about the sale of the beer to the said minor, and defendant admitted that he had sold the person described the bottle of beer which he drank at the bar, and also the carton of beer, and that the purchaser had been at the tavern on previous occasions, on one of which he had shown him written verification that he was twenty-one years old.

At the close of the plaintiff's testimony it offered Exhibit S-3, being a copy of defendant's class 'B' permit, with the certificate of the town clerk attached, as follows:

'State Of Iowa Beer Permit Class B.'

'The permittee herein, having complied with the Statutes of the State of Iowa, in making application for a Class B Permit to Sell Beer in this State, and with requirements of Town Council of Martensdale, Iowa, this Class B Permit is issued to Ray's Tavern, Martensdale, granting permission to Sell Beer, as authorized in said Statutes, at the premises indicated above.

'This permit is nontransferable, and expires on the 4th day of May, A. D. 1952, unless previously revoked.

'In Testimony Whereof, I have caused the seal of said Town to be hereunto affixed.

'Dated at Martensdale, in the County of Warren, State of Iowa, this 24th day of April, A. D. 1951.'

'(Seal)

Herbert Stroud, Town Clerk.'

Attached to the copy of said certificate was the following certificate.

'Certificate'

'I Herbert Stroud, Town Clerk of the Town of Martensdale, do hereby certify that the attached Permit is a true and correct copy of the original Class 'B' Beer Permit issued to Ray Hill by the Town of Martensdale, Iowa, dated April 24th, 1951, and that said Permit remains in full force and effect at this time, as shown by the records of the Town of Martensdale, in my possession as Clerk of said Town. Dated March 31, 1952.

'Signed: Herbert Stroud

'Seal Clerk of the Town of Martensdale, Iowa.'

Defendant made the objection to the offer of Exhibit S-3: 'It is objected to as being incompetent, irrelevant and immaterial, not properly identified. Amounting to an attempt to secure the testimony of a person who didn't testify before the grand jury; not the best evidence.'

The court, after reading the certificate aloud, said: 'That doesn't show the record of the issuance of the permit. It shows only a certified copy of the permit itself. Now, it is my idea, and I may be wrong, that in criminal matters where there is a record, that the complete record should be shown, and that the officer having the custody of that record should be here to identify it and swear to its authenticity. Otherwise we could convict people upon just handed-in certified copies of records. Where the records are necessary to the conviction, without giving the defendant an opportunity to combat that record. In other words to cross-examine the persons who have the custody of it to show whether or not that is the full and complete record. I can't see, Mr. Herrick, that that would be admissible here in order to take the place of the record of the issuance of the permit, which I think is necessary in this case. The objection will be sustained.'

Defendant then moved that the court direct a verdict in his favor for the reasons: '1. That the testimony and proofs as presented by the State do not support the allegations of the indictment, and do not constitute proof of a case against the defendant, and particularly that the proofs introduced by the State do not show the sale of any beer to any minor upon any premises of a Class B or Class C permit holder; and that the proofs as introduced herein do not sustain the charge of the indictment here in this case in any particular; and said defendant further moves the Court for a directed verdict, as aforesaid, for the reason of said failure of proofs.'

'The Court: I think it is incumbent upon the State to prove that the sale was made in this tavern under a Class B permit. I think that is necessary. I guess we can't look at it alike. The motion will be sustained.'

The plaintiff assigns two errors as grounds for reversal: (1) in directing a...