State v. McConnell

• Decision Date: 01 February 1894
• Citation: 90 Iowa 197,57 N.W. 707
• Parties: STATE v. MCCONNELL.
• Court: Iowa Supreme Court

90 Iowa 197

57 N.W. 707

STATE

v.MCCONNELL.

Supreme Court of Iowa.

Feb. 1, 1894.

Appeal from district court, Poweshiek county; A. R. Dewey, Judge.

Indictment for liquor nuisance. Verdict for defendant by direction of the court. The state appeals.J. P. Lyman, for the State.

KINNE, J.

1. Defendant was indicted for a liquor nuisance, pleaded not guilty, and at the close of the state's evidence, and on the defendant's motion, the court directed a verdict for defendant. Defendant was a member of a firm composed of three persons, viz. H. K. Snider, Dr. E. W. Clark, and himself. This firm was operating a drug store in the city of Grinnell, and the sales of liquors complained of were made in said store, either by defendant or by a clerk employed by the firm. H. K. Snider was a registered pharmacist, and held a permit to sell intoxicating liquors in said store during the time covered by the testimony in this case. In January, 1892, Snider removed to Chicago, Ill., but retained his interest in said firm and store until after the finding of the indictment in this case. Defendant was also a registered pharmacist during the time of the sales complained of, but was not a permit holder.

2. On the trial a witness was asked whether the liquor he had bought of defendant during the time from March until September was all that he had bought during that period, and whether during the year 1892 he used intoxicating liquors other than what he bought of defendant. These questions were objected to as being incompetent and immaterial, and the objection sustained. Section 12, c. 35, Acts 23d Gen. Assem., provides that “in the trial of any action or proceeding against any person for manufacturing, selling, giving away, or keeping with intent to sell, intoxicating liquors in violation of law * * * the requests for liquors and returns made to the auditor as heretofore required, the quantity and kinds of liquors sold or kept, purchased or disposed of, the purposes for which liquors were obtained by or from him, and for which they were used, the character and habits of sobriety or otherwise, shall be competent as far as applicable to the particular case. * * *” The questions asked were, under this statute, proper. Their evident intent and purpose was to show the habits of the witness as to the use of intoxicating liquor, and, under the statute, this is permissible.

3. Several witnesses testified to the purchase of liquors made by them at defendant's store through a clerk of the firm. On defendant's motion this evidence was stricken out, to which the state excepted. This action of the court seems to have been based upon the thought that defendant would only be liable for sales made by himself. If the defendant had been a permit holder, he would, under the statute, be liable for all sales made by any of his clerks. Acts 23d Gen. Assem. c. 35, § 15. Hence, if we treat him as being protected by the permit issued to his partner,--a question not now decided,--still he would be responsible for the acts of his clerk in making sales. We think the evidence should have been admitted. The statute expressly prohibits the manufacture or sale of intoxicating liquors by any person, his clerk, steward, or agent, directly or indirectly. Code, § 1523. Defendant was one of a firm engaged in keeping the place where...