State v. Hutchins

• Decision Date: 08 March 1888
• Parties: THE STATE v. HUTCHINS
• Court: Iowa Supreme Court

36 N.W. 775

74 Iowa 20

THE STATE v. HUTCHINS

Supreme Court of Iowa, Des Moines

March 8, 1888

Decided December, 1887

Appeal from Jones District Court.

DEFENDANT was fined before a justice of the peace upon an information charging that he did "unlawfully sell and give away" intoxicating liquors to a person named in the information. Upon appeal to the district court he was again convicted. He now appeals to this court.

REVERSED.

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

A. J Baker, Attorney General, for the State.

OPINION

BECK J.

I.

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

II. Code, section 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 the giving away of intoxicating liquors, except it is done as an evasion of the penalties for selling, or as a subterfuge to conceal unlawful sales. Code, section 1554, directs that "courts and jurors shall construe this chapter so as to prevent evasions, and so as to cover the act of giving as...