State v. Ryerson

• Decision Date: 13 December 1955
• Docket Number: No. 48783,48783
• Parties: , 55 A.L.R.2d 1190 The STATE of Iowa, Plaintiff-Appellee, v. Jesse RYERSON, Defendant-Appellant.
• Court: Iowa Supreme Court

Page 757

73 N.W.2d 757

247 Iowa 385, 55 A.L.R.2d 1190

The STATE of Iowa, Plaintiff-Appellee, v. Jesse RYERSON, Defendant-Appellant.

No. 48783.

Supreme Court of Iowa.

Dec. 13, 1955.

Kelly, Spies & Culver, Emmetsburg, for appellant.

Dayton Countryman, Atty. Gen., Raphael R. R. Dvorak, Asst. Atty. Gen., John Jay Duhigg, County Atty. for Palo Alto County, Emmetsburg, for appellee.

BLISS, Justice.

Section 124.20, Code of Iowa 1954, I.C.A., provides: 'Prohibited sales and advertisements. No holder of a permit under the provisions of this chapter [No. 124, entitled 'Beer and Malt Liquors'] shall exhibit or display or permit to be exhibited or displayed on the premises any signs or posters containing the words 'bar', 'barrooms', 'saloon' or words of like import.

'Nor shall any such beer be sold or delivered to or consumed by any person, on the premises of any class 'B' permit holder, between the hours of twelve o'clock midnight on Saturday and seven o'clock of the following Monday morning.

'It shall be unlawful for any person to sell, give or make available to any minor or to permit any minor to purchase or consume any beer on the premises of a class 'B' or class 'C' permit holder, or for any minor to buy or attempt to buy or to secure or attempt to secure beer from any person, and it shall further be unlawful for any person to offer beer, with or without consideration, to any minor, except within a private home and with the knowledge and consent of the parent or guardian of said minor. A violation of the provisions of this paragraph by any holder of a class 'B' or class 'C' permit or any of his agents or employees in connection with the operation of a beer business under said class 'B' or 'C' permit shall be a mandatory ground for revocation of said permit, in addition to other mandatory grounds provided in this chapter.'

Section 124.37 provides for punishment by fine or imprisonment for any person who violates any of the provisions of Chapter 124 of said Code.

It will be noted that section 124.20 contains several separate and distinct specified conditions and acts that are stated to be unlawful. In State v. Hill, 244 Iowa 405, 412, 57 N.W.2d 58, we had this section under consideration. In that case, as in the one now before us, the indictment in the first, and the information, in the second, simply charged the defendant with the sale of beer to a minor contrary to section 124.20, without specifying the particular violation noted in the section. Both parties cite State v. Hill, supra, in support of the respective contention of each, of which more will be said following a statement of the facts in the case at bar.

There is no dispute about the facts. Darrell Garrelts, a farm laborer, was born in Ayrshire, in Palo Alto County, Iowa, on May 16, 1935, and continued to live in that locality. On October 29, 1954, accompanied by James Kennedy, about 17 or 18 years old, he drove his automobile from Ayrshire to Emmetsburg, and later that evening, both boys went to the home of a girl friend of about their age. Darrell testified that he left the party later, and went alone to the rear door of Price's Tavern in Emmetsburg, which he entered, and bought and paid for two 'six packs' of Schlitz beer, which were sold and delivered to him by defendant. He then returned with the beer to the party and he and his two companions drank the beer. About 10 o'clock that night these young people contacted another girl of about their age, and the latter and the first mentioned girl and Darrell went in the car to the rear of Price's Tavern, where Darrell again entered and received by purchase from defendant two more of the six-can packs of beer which they took to the home of the first-mentioned young lady, and drank. The testimony of Darrell of the purchases is corroborated by the testimony of the two young ladies. Darrell testified that defendant on neither purchase questioned him as to his age, nor asked any identification, and that he (Darrell) made no representations that he was twenty-one years old. He testified that he and James left the house-party about a half-hour after midnight, and that 'I was somewhat intoxicated at the time, and I myself had six or seven cans of beer; * * * We were going home and I saw that I was about out of gas and was going to get some but turned on the wrong street and upset my car. * * * Jack Ruddy and Patrolman Lewis came to my home after the accident and I gave them the information as to where I bought the beer. * * * I was not promised immunity from prosecution for making beer available to someone else if I testified in this case. I did not know it is also unlawful for a minor to purchase beer and I was not promised any immunity on such charge if I testified in this case. I was was not promised immunity from prosecution for operating a motor vehicle while intoxicated as a cause of the accident, if I testified in this case.'

The State rested after the testimony of Darrell and the two young ladies. Defendant then moved 'that the Court direct a verdict of acquittal for the reason that the State has failed to prove or to offer any evidence that the alleged sale took place upon the premises of a Class 'B' or 'C' permit holder as required by Section 124.20, Code of Iowa, 1954, I.C.A., and cites as authority State v. Hill, 244 Iowa 405, ' supra.

The motion was overruled. After stipulating that defendant was an employee at Price's Tavern at all times material, the defense rested without offering any evidence, and his renewed motion for a directed verdict was overruled.

Although no assignment of error is necessary, Section 793.15, Iowa Code 1954, I.C.A., the defendant-appellant calls the attention of this Court to the following claimed errors: 1. The failure of the State to prove that the sale took place on the premises of a Class 'B' or 'C' permit holder.

2. Error in overruling defendant's motions for a directed verdict of not guilty.

3. Errors in giving Instructions numbered 6, 7, and 8.

4. The instructions did not contain a correct definition or explanation of the crime charged.

5. Misconduct of the County Attorney in his closing argument to the jury.

I. We will consider the first two assigned errors together as each has the same basis. In error 1, appellant states that the county attorney's information failed to allege that the sale of beer took place on the premises of a class 'B' or 'C' permit holder, and the State did not offer any evidence in support of this 'essential element'. His brief point is that in a prosecution for selling beer to a minor in violation of Code section 124.20, the burden is upon the State to prove the sale was on the premises of a class 'B' or 'C' permit holder. The only authority cited by him in support of the brief point, is State v. Hill, supra, 244 Iowa 405, 57 N.W.2d 58. There is no merit in the first assigned error, nor in the supporting brief, and the cited authority has no controlling force in the appeal before us.

The first sentence in the third paragraph of section 124.20 designates three acts that are unlawful. The first of these acts is stated in the words ending with the first comma, to wit: 'It shall be unlawful for any person to sell, give or make available to any minor or to permit any minor to purchase or consume any beer on the premises of a class 'B' or class 'C' permit holder'.

The second of these unlawful acts is stated in the words directly following the above quoted words, and ending with the second comma, to wit: 'or for any minor to buy or attempt to buy or to secure or attempt to secure beer from any person'. We are not concerned with this offense since it is one committed by the receiver of the beer, and not by the dispenser.

The third of these unlawful acts is stated in the words just following the last quotation, and ending with the period, to wit: 'and it shall further be unlawful for any person to offer beer, with or without consideration, to any minor, except within a private home and with the knowledge and consent of the parent or guardian of said minor.'

In the Hill case, supra, the State sought to establish the first of these three unlawful acts by proving the offense was committed on the premises of a class 'B' permit holder. In doing so it became incumbent on the State to establish that fact, and it voluntarily assumed that burden. The action was tried and submitted on that theory. The trial court directed a verdict for defendant on the ground that the State had not proven that defendant had a class 'B' permit. This Court reversed because the evidence, in our judgment, made the question one for the jury.

It was the thought of this Court in the Hill case that the State had assumed a heavier burden than was necessary in selecting the first of the unlawful acts, supra, requiring the proof of the permit, when the evidence would have sustained a conviction of the third unlawful act, without establishing the defendant had a class 'B' permit. And we so stated in the opinion, 244 Iowa at page 413, 57 N.W.2d at page 62: 'Under the testimony, the defendant offered beer to the minor and received a cash consideration. Under this clause of section 124.20, such a transaction would be a sale of beer, notwithstanding it took place in defendant's tavern, and regardless of whether he had a class 'B' permit or not. But this is not argued by plaintiff, and we base our conclusion that the district court erred in directing a verdict for defendant, upon the ground that under the indictment and section 124.20, the plaintiff had the burden of establishing a sale of beer to a minor by the defendant on premises operated under a class 'B' permit, sufficient to make a case for the jury, and was prevented from doing so by the court's error in overruling plaintiff's offer of Exhibit ' § 3'.'

Under the indictment and the evidence in the appeal before us, contrary to the appellant's contention, it was not necessary that the State establish that...