State v. National Selright Association

• Decision Date: 22 November 1921
• Docket Number: 34212
• Citation: 185 N.W. 145,192 Iowa 629
• Parties: STATE OF IOWA, Appellee, v. NATIONAL SELRIGHT ASSOCIATION, Appellant
• Court: Iowa Supreme Court

185 N.W. 145

192 Iowa 629

STATE OF IOWA, Appellee, v. NATIONAL SELRIGHT ASSOCIATION, Appellant

No. 34212

Supreme Court of Iowa, Des Moines

November 22, 1921

Appeal from Polk District Court.--HUBERT UTTERBACK, Judge

Under a search warrant, 25 cases of Old Reserve and a small quantity of Beef, Iron & Wine and of Stearns Tonic were seized. The principal contention is in regard to the Old Reserve Tonic. The National Selright Association is a wholesale drug firm with its principal place of business in Des Moines, Iowa. It appeared, and filed a resistance, claiming to be the owner and that the liquors seized are bona-fide medicinal preparations, and not intoxicating liquor, and incapable of being used as a beverage. It asked the return of the liquor. The liquor was seized January 25, 1921. The trial court ruled that Old Reserve and Beef, Iron & Wine were intoxicating liquors, capable of being used as a beverage, and that they were banned by the Iowa law; and that the Old Reserve comes under the ban of the Iowa law, notwithstanding the Federal statute and the certificate or permit from the Federal authority. The liquors were ordered destroyed. The defendants appeal.

Affirmed.

Samuel Abrahamson, for appellant.

Ben J Gibson, Attorney General, and B. J. Flick, Assistant Attorney General, for appellee.

PRESTON, J. EVANS, C. J., WEAVER and DE GRAFF, JJ., concur.

OPINION

PRESTON, J.

The stockholders in the defendant association are, in the main, some 300 retail druggists in the state of Iowa. It purchased a quantity of Old Reserve from the Old Reserve Distributing Company, the manufacturers. The last named company has a Federal permit to purchase and use alcohol in the manufacture of Old Reserve, under the provisions of the National Prohibition Act, and to manufacture Old Reserve. There is no evidence of sales by the defendant association to any but retail druggists. Some of the liquors such as that seized were purchased from a drug store, and upon analysis, showed 20 per cent of alcohol. The court found that the liquors contained over 20 per cent of alcohol.

1. Appellants contend that the substances in question were medicinal compounds; that they were so compounded with other substances as to destroy their use as a beverage. They say that, this being so, the liquids could be lawfully sold, even though they contained a large percentage of alcohol. This presents a question of fact in each case. In one case, the evidence might show that a compound was intoxicating, and capable of being used as a beverage, while in another case, the evidence might utterly fail to show such facts in regard to the same substance. It is conceded in this case that it is a question of fact. There is an abundance of evidence in this record to sustain the finding of the trial court. Professor Galloway analyzed samples, and found more than 20 per cent of absolute alcohol. He says he found no evidence of medicinal qualities except those of port wine, and that the compound would be intoxicating, the same as port wine would be. Mr. Jordan, assistant state chemist, testifies:

"I made an analysis of preparation known as Old Reserve, at the instigation of Mr. Hammond. I analyzed the contents of the bottle marked Exhibit B, and found 20.14 per cent alcohol by volume, total solids 6.42 grams per 100 cc., and reducing sugars 5.51 gms. per 100 cc. I also found tannic acid and pectin present. The rest of the contents was water. The reducing sugars also contained tannic acid and pectin. Don't know as I ever analyzed ordinary port wine. Port wine contains from 18 to 20 per cent alcohol--about the same as Old Reserve. Whisky contains more alcohol. In my judgment, Old Reserve tonic is an intoxicant, and might be used for beverage purposes. Found no aloin, buckthorn, or cascarin. I did not test for cardamon. There might be some gums or resins--a very small amount. I wouldn't consider Old Reserve a medicine, as the term is ordinarily used and accepted."

Professor Kinney, testifying for the defendant, says that his analysis showed 1.17 per cent total solids by weight; that he detected the presence of aloin, buckthorn, cardamon, and cascara, and a small amount of sugar; that the solids were composed of extract drugs, and that alcohol was a preservative, and that this compound would ferment and spoil quickly without alcohol; that aloin is a laxative, and used as a stomach tonic; that cascara, buckthorn, and cardamon are general laxatives; that it would be classed as medicine; that it tasted bitter, and would be nauseating to most people. But he testified, on cross-examination:

"I think it might be used as a beverage. Some people might used it as a beverage, and if it was used that way, it would be intoxicating."

Witness Hammond, state agent, was with the sheriff, when these liquors were seized.

"I found three bottles of Beef, Iron, and Wine empty on the second floor of the place, and one bottle of it half full. Delivered a bottle of Old Reserve to Professor Galloway, to be examined."

He says further that the liquor was taken to the jail after it was seized. On cross-examination, he says:

"I mean by liquor, this liquor that was disguised as patent medicine. Q. You mean this Old Reserve Tonic, Beef, Iron, and Wine, and Stearns Tonic? A. Yes, sir. I want to say further that, on Monday following, I saw three young men in a hotel, who had a bottle of Old Reserve, the same brand--(At this point, counsel for appellants made this statement: "I do not believe this testimony is competent, relevant, or material, and is not binding on this party." Overruled and defendant excepts. Witness continued with his answer.) "One of the fellows took out a knife and cut the seal off the top, and the other one had a knife with a corkscrew in the back of it, and pulled the cork out. The three men drank it until the bottle was empty. The bottle was set down on the washstand, and I picked it up and took it with me. It is identically the same kind of a bottle, label, and seal, which is on this Old Reserve. I took one of the bottles of this Old Reserve to the state chemist, and one to Professor Galloway, who analyzed it as to whether it was properly medicated, so that it might not be used as a beverage."

It is claimed that there was error at this point, in overruling the objection, if it was an objection. It will be observed that the statement by Mr. Abrahamson was made in the middle of the answer of the witness. There was no motion to exclude the answer, or any specific part of it. The statement is that this testimony was not competent, etc. A part of it was proper, and in response to questions propounded by counsel for defendant. No specific objection or motion was made as to the part of the answer claimed to be improper. State v. Hasty, 121 Iowa 507, 517, 96 N.W. 1115; Hay v. Hassett, 174 Iowa 601, 607, 156 N.W. 734; Bank of Bushnell v. Buck Bros., 161 Iowa 362, 365, 142 N.W. 1004. We think there was no error here of which appellants may complain.

The sheriff testified that he did not have the Beef, Iron, and Wine analyzed; that it had been analyzed and tried before the courts several times, and been condemned; that he knows the percentage of alcohol only by what is marked on the bottle--18 per cent, and the Stearns Tonic 15 per cent. The sheriff was also asked separately as to whether the Old Reserve Tonic, the Beef. Iron, and Wine, and the Stearns Tonic were used as a beverage, and he said it was. This was over objection by defendants that it was calling for the opinion of the witness. The sheriff did not state how he knew that the different substances were used as a beverage, except as to the Old Reserve. He says he knows that was used as a beverage, because a man offered it to him as a beverage, and the man himself was drunk on it....