State v. Johnson

• Decision Date: 25 June 1925
• Docket Number: No. 36847.,36847.
• Citation: 200 Iowa 324,204 N.W. 273
• Parties: STATE v. JOHNSON.
• Court: Iowa Supreme Court

200 Iowa 324

204 N.W. 273

STATE

v.JOHNSON.

No. 36847.

Supreme Court of Iowa.

June 25, 1925.

Appeal from District Court, Kossuth County; D. F. Coyle, Judge.

The defendant was charged by indictment with the maintenance of a liquor nuisance. He pleaded not guilty. At the close of the evidence for the state, the defendant's motion for a directed verdict of acquittal was sustained. The state has appealed. Reversed.Ben J. Gibson, Atty. Gen., and W. B. Quarton, Co. Atty., of Algona, for the State.

E. J. Van Ness, of Algona, and J. E. Williams, of Mason City, for appellee.

EVANS, J.

The appeal of the state brings before us for review, the ruling of the trial court in directing a verdict of acquittal. The evidence for the state disclosed that certain officials made a search of the farm premises occupied by the defendant, and found thereon, concealed in a trench, six cans of alleged intoxicating liquor, to a total amount of six gallons. This trench was in the near vicinity of defendant's barn. It was dug into the earth 3 feet deep, and was 2 feet wide. The cans were placed therein, and were covered with portions of a manure pile adjacent to the barn. To all appearances the trench was extended under the manure pile, which was adjacent to the barn.

The trial court predicated its ruling upon three main grounds: (1) That the trench was not a “building, erection, or place,” within the meaning of the statute; (2) that the proof was insufficient to justify a finding by the jury that the cans thus discovered contained intoxicating liquor; (3) that the evidence was insufficient to show that the defendant was in any manner responsible for the presence of the cans of alleged intoxicating liquor upon the premises, in that it was not proved that he was the owner of the farm, and not proved that he was even the renter thereof. The questions presented for our consideration are those that naturally arise out of the foregoing grounds of decision.

[1] I. The record contains an extended expression of view by the trial court, preceding the ruling. As to the first ground above stated, the holding was that the word “place,” as used in the statute, must be construed as the equivalent of the preceding words, “building” and “erection,” and that the trench in question was not a “building” or “erection,” and was therefore not a “place.” In so holding, the trial court did not have before it our very recent pronouncement in State v. Elliott, 199 N. W. 270. In that case we said:

“It must be conceded that the business of appellant and his associate was not carried on in a building. An erection admits of a much broader definition. A building is an erection, but an erection is not necessarily a building, within the meaning of the statute. An ‘erection’ is a structure of any kind, and need not have a roof, covering, or be entirely inclosed. A ‘place’ is of much broader significance than ‘erection.’ ”

The “place” involved in the cited case is described “as a depression in the ground, a kind of an old bayou, with big horse weeds and grapevines very thick surrounding it.” There was no covering over the place, but it “was kind of built up, had some poles nailed up around there, and a big box there; the barrels were covered with blankets and with a canvas.” We held this to be a “place,” within the meaning of the statute. The character of the “place,” within the meaning of the statute, is created by its suitability and use as a harbor for intoxicating liquors, and not by its appearance or its construction before it became such harbor. It becomes a nuisance, not by reason of what it was before, but by the fact of its use as a covert for intoxicating liquors, there assembled for the purpose of unlawful sale. When a vender of intoxicating liquors brings his stock in trade to a “place” of rest and cover, he thereby creates a center for his unlawful trade. Such a “place” becomes a nuisance, not because of the inherent character of the “place” itself, but because of the character and nature of its occupancy.

It is somewhat as though a carcass be deposited at a “place” previously inoffensive. The ensuing odors become an offense to clean olfactories, and yet an attraction to carrion assemblage. “For wheresoever the carcass is, there will the eagles be gathered together.” Matth. xxiv, 28. Whenever, therefore, a “place” becomes one of assemblage of intoxicating liquors, not in transit, but held there for the purpose of unlawful sale, it thereby becomes under the law a “place” of nuisance; and it matters little whether such “place” be a trench in the ground or a lodge in the boughs of a tree. It is enough that stench emanates from it, and that evil assemblage is attracted to it.

[2] II. The discovery of the cans of liquor was made by Federal Prohibition Agent Wilson and Deputy Sheriff Hovey. Earlier in the day one Wagner had been upon the premises, and had bought a quart of alleged whisky. He made such purchase through the defendant and one Raymond Wolfe, who was there present. Wagner having proposed to purchase, Johnson went into his residence and obtained a suitable bottle, brought it out, and handed it to Wolfe, who thereupon went to a coal pile 15 feet away and took therefrom a can, from which he filled Wagner's bottle. The filled bottle was delivered by Wolfe to Wagner, and the purchase price of $5 was paid to Wolfe. This bottle was delivered...