State v. Lyon

• Decision Date: 05 May 1916
• Docket Number: No. 31065.,31065.
• Citation: 176 Iowa 171,157 N.W. 742
• Parties: STATE v. LYON.
• Court: Iowa Supreme Court

176 Iowa 171

157 N.W. 742

STATE

v.LYON.

No. 31065.

Supreme Court of Iowa.

May 5, 1916.

Appeal from District Court, Lyon County; William Hutchinson, Judge.

Defendant was indicted, tried, and convicted of perjury, and appeals. Affirmed.Warren H. White, of Rock Rapids, for appellant.

Geo. Cosson, Atty. Gen., and John Fletcher, Asst. Atty. Gen., for the State.

PRESTON, J.

1. As appellant states the issues, the indictment charges the defendant with having committed the crime of perjury by having testified falsely in his hearing or trial before the justice of the peace, Geo. Monlux, on or about August 26, 1915, by testifying on the witness stand in said hearing or trial, and while under oath, as follows, to wit:

“That he did not sell intoxicating liquor to the said John Hegarty on or about the 25th day of August, 1915, and did not accept money therefor, whereas in truth and in fact the said Luther Lyon did sell intoxicating liquor to the said John Hegarty and did accept money therefor, and did thereby willfully, corruptly, unlawfully, knowingly, and feloniously commit perjury, contrary to the statute in such case made and provided.”

The record shows that at some time prior to the indictment in this case defendant had been arrested, tried, and convicted in justice court for the offense of selling intoxicating liquors. He was charged with having sold the liquors to a man by the name of Hegarty. Upon the trial of that case the defendant was a witness in his own behalf, and testified that he did not sell any liquor to Hegarty, and that he did not receive any money from Hegarty for liquor. On the trial under the indictment in this case, the state proved the transaction, which it claims was a sale of liquor by defendant to Hegarty, and proved that defendant did receive $1 from Hegarty for liquor delivered by defendant to Hegarty. The purchase of the liquor had been arranged by the marshal of the town, who had given to Hegarty a marked $1 bill. This bill was paid by Hegarty to the defendant, and when arrested the money was found on the person of defendant. And in return for the money it was proven that defendant delivered to Hegarty two half pint bottles filled with liquor.

[1] The contention of appellant is, as we understand it, that it was not shown that the liquor was in the possession of or owned by the defendant, but that, at most, defendant was acting only as agent for Hegarty, and obtained the liquor from the possession of some one other than himself, and, further, as bearing upon the question as to whether his testimony was corrupt, that defendant was only placing his construction upon the transaction as to whether it constituted a sale under the law. But there are two specifications in the indictment, the proof of either of which would be sufficient to sustain a conviction. These are, as before set out in stating the issues, that the defendant testified that he did not sell the whisky, and that he did not accept money. We shall refer to the testimony bearing upon the first specification. Hegarty testified that he first met defendant two years before, and again fair week, and paid him a $1 bill for liquor, which defendant delivered; that there were two half pints, and he gave them to the justice, and testifies as to the payment of the marked money. The marshal testified that he marked the $1 bill and put the number down in a book, and that he delivered it to Hegarty and saw Hegarty hand the money to defendant, and saw defendant deliver two half pints of whisky to Hegarty. Another witness testifies that when defendant was searched after his arrest the $1 bill that had been marked by the marshal and delivered to Hegarty was found in defendant's possession at that time and, among other articles, some corks of the size for use in half pint liquor bottles. The record does not show just where the defendant obtained the liquor which was delivered to Hegarty. It does show that defendant himself produced the whisky, and that he received pay for it; that when approached by Hegarty and asked if he could furnish him some whisky defendant simply replied, “Give me that money,” and almost immediately produced the liquor. The record shows that Hegarty had purchased liquor from the defendant prior to that time. So far as the state's evidence shows, the liquor was produced by the defendant and turned over to Hegarty by him, and there is no showing that the liquor was purchased from any one else, thus refuting the position of the defendant that he was simply acting as an agent for Hegarty in the purchase of the liquor. It would have been a matter of defense for the defendant to have shown that he purchased the liquor from some one who had authority to sell it, but the defendant did not become a witness in his own behalf in this case, and no testimony was offered by him. The statute provides that the liquor law is to be construed so as to prevent evasion. We think the jury was justified in finding that there was a sale by defendant to Hegarty, and that his claim that he was only acting as an agent is a mere pretense or evasion in an attempt to escape punishment.

2. As to the other specification, defendant testified that he did not accept money for the intoxicating liquor sold to Hegarty. The evidence is very clear, and is undisputed in this case that the defendant did accept the $1 bill from Hegarty for the whisky which defendant delivered to Hegarty, and, even though it be conceded that such sale was by defendant as agent for Hegarty, or any one else, the acceptance by defendant of the $1 bill would constitute perjury.

[2][3] 3. Appellant complains of the introduction in evidence of the marked $1 bill. This bill was in...