State v. Schuling, 42038.

• Decision Date: 24 October 1933
• Docket Number: No. 42038.,42038.
• Citation: 216 Iowa 1425,250 N.W. 588
• Parties: STATE v. SCHULING et al.
• Court: Iowa Supreme Court

216 Iowa 1425

250 N.W. 588

STATE

v.SCHULING et al.

No. 42038.

Supreme Court of Iowa.

Oct. 24, 1933.

Appeal from District Court, Madison County; W. S. Cooper, Judge.

Appellants were found guilty by a jury of the crime of nuisance. This appeal is prosecuted from a judgment entered upon such verdict.

Reversed.George Wrightman, of Des Moines, and C. A. Robbins, of Winterset, for appellants.

Edward L. O'Connor, Atty. Gen., and Charles Van Werden, Co. Atty., of Winterset, for appellee.

CLAUSSEN, Justice.

The grand jury of Madison county returned an indictment against Charles Elmers, Joe Elmers, Harry Schuling, and Ray Luther charging them with the crime of nuisance. The indictment alleges that the defendants did “unlawfully, wilfully, and intentionally use and continue to use a building, erection, and place, to-wit; a dwelling house situated in Section 24, Lee Township, Madison County, Iowa, in which unlawful manufacture or sale or keeping with intent to sell, or possession of or use of, or give away, intoxicating liquors, continued and existed, and that said defendants were then and there concerned, engaged, and employed in owning, keeping and manufacturing intoxicating liquors, contrary to the statute,” etc.

It is to be noted that the charge is that a dwelling house was used by the defendants in the unlawful manufacture, keeping, and sale of intoxicating liquors, as distinguished from the use of the premises for the manufacture of any instrument intended for use and capable of being used in the manufacture of intoxicating liquors.

The defendants Charles and Joe Elmers are not involved in this appeal. The record indicates that the Elmers were the parties in possession and control of the premises upon which the dwelling house in question was situated. The record does not indicate that appellants Schuling and Luther had any interest in or control of the real or personal property involved in the maintenance of the nuisance.

Appellant, Schuling, is a plumber who maintained a place of business in Des Moines. Luther was Schuling's helper, and the record indicates that Luther was employed by Schuling to help him on this occasion in whatever work may have been done upon the Elmers' property. He was not a regular employee of Schuling. The difficulties in which appellants find themselves are due primarily to the peculiar synchronization of events by which the appellants were on the premises at the time a raid was made by law enforcing officers under authority of a search warrant. The officers discovered the appellants upstairs in the dwelling house on farm property. In the upstairs rooms the officers discovered fourteen barrels of mash, a large cooker, and various paraphernalia for the condensation of the vapors produced in the process of distillation. The cooker was lying on the floor. The officers testified that some soldering had been done on the cooker, and that the soldering was “fresh.” In the upstairs rooms were found a blow torch and a soldering iron belonging to Schuling. The blow torch and the soldering iron were warm. They also discovered some small sheets of copper and solder in the upstairs rooms. Appellants testified that they were called to the premises for the purpose of repairing a pump on the farm; that the repairs on the pump were completed at noon; that they were invited to take dinner with the Elmers, which invitation they accepted; that after finishing the noonday meal one of the Elmers told Schuling that he (Elmers) had a small job of soldering upstairs; that appellants, unaccompanied by either of the Elmers, took the blow torch and soldering iron upstairs and had not much more than arrived in the upper portion of the house when the raid began. We shall not attempt to set forth all of the evidence. It is...