State v. Hutchins

CourtUnited States State Supreme Court of Iowa
Writing for the CourtBECK
Citation74 Iowa 20,36 N.W. 775
Decision Date08 March 1888

74 Iowa 20
36 N.W. 775


Supreme Court of Iowa.

March 8, 1888.

Appeal from district court, Jones county.

Defendant, N. W. Hutchins, was charged, on information, with unlawfully and willfully selling and giving away intoxicating liquor to one Martin Berger. The court, over defendant's objections, instructed the jury that “if you find from the evidence that defendant had whisky in his possession at and about the time and place charged in the information, and that the defendant then and there passed the same to Martin Berger to taste some of it, without any pay or consideration to be paid by said Berger to defendant for said whisky, this would be a gift, and would be sufficient to convict the defendant of giving away said whisky.” Defendant was convicted, and appeals.

[36 N.W. 775]

Sheean & McCarn and J. G. McConahy, for appellant.

A. J. Baker, Atty. Gen., for the State.


1. The district court in effect instructed the jury that under the statute of this state the giving away of intoxicating liquors is prohibited, and that if defendant gave to the person mentioned in the information whisky “to taste some of it,” without pay or consideration to be paid by such person, it would be a gift and authorize the conviction of defendant. The attorney general well says in his printed argument that the record discloses that “it is fully apparent that there was no subterfuge in the case. The giving was a gift. It was not a gift covertly intended to be a sale.” It was simply the case of one having a bottle of whisky in his possession, after drinking himself, passing it

[36 N.W. 776]

to another who also drank. The person drinking it was not a minor, nor intoxicated, nor in the habit of becoming intoxicated.

2. Code, § 1523, prohibits the manufacture and sale of intoxicating liquors except as permitted by law. Section 1540 prohibits all persons not authorized by law to sell intoxicating liquors, “directly or indirectly, or on any pretense or by any device,” or to give to any person any such liquors “in consideration of the purchase of any other property.” Section 1539 declares that “it is unlawful for any person to sell or give away intoxicating liquors to a minor for any purpose whatever, except upon the written order of his parent, guardian, or family physician.” It also prohibits the sale of such liquors by all persons to any person intoxicated or in the habit of becoming intoxicated. No provision of the statute, except section 1539, forbids...

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