State v. Smith

• Decision Date: 15 October 1907
• Citation: 113 N.W. 336,135 Iowa 523
• Parties: STATE OF IOWA, Appellee, v. DAVID SMITH, Appellant
• Court: Iowa Supreme Court

113 N.W. 336

135 Iowa 523

STATE OF IOWA, Appellee, v. DAVID SMITH, Appellant

Supreme Court of Iowa, Des Moines

October 15, 1907

Appeal from Plymouth District Court.--HON. WM. HUTCHINSON, Judge.

UPON appeal to the district court from a conviction before a justice of the peace of the crime of aiding in the unlawful delivery and distribution of intoxicating liquors, defendant was found guilty and sentenced to pay a fine, and from the judgment appeals to this court.

Reversed.

J. M Wormley and Zink & Rosenberry, for appellant.

H. W Byers, Attorney-General and Charles W. Lyon, Assistant Attorney-General, for the State.

OPINION

DEEMER, J.

The information filed before the justice charged that defendant "on the 28th day of March, 1906, at the township of Garfield, in the county and State aforesaid, did willfully and unlawfully take and receive from one Roy Stephenson, he being at the time a minor, twenty-five cents and an oral request from said Stephenson that he, the defendant, procure for said Stephenson a bottle of intoxicating liquors, to-wit, beer, and the said defendant did with said twenty-five cents unlawfully purchase and procure for said Stephenson and deliver to him one bottle of beer; all of said acts being done by the defendant to evade the statutes of the State of Iowa regarding the sale of intoxicating liquors to minors." When the case reached the district court on appeal, defendant pleaded not guilty, and also filed the following plea:

That on or about the 30th day of March, 1906, one Mrs. R. A. Stephenson caused an information to be filed before O. D. Heald, a duly elected, qualified, and acting justice of the peace in and for Plymouth county, Iowa Garfield township, against the defendant, which information with the officers filing thereof is in words and figures as follows, to wit: 'In justice of the peace court in and for Garfield township, Plymouth county, Iowa. Before O. D. Heald, justice. State of Iowa Plff. v. David Smith, Def., The defendant, David Smith, is accused of the crime of being and bootlegging: For that the defendant in the township of Garfield in the county and State aforesaid, on the 28th day of March, 1906, did willfully and unlawfully carry around on his person intoxicating liquors, to wit, beer, with the unlawful intent to deliver and dispose of the same to one Roy Stephenson, a minor, contrary to the statutes in such case made and provided and against the peace and dignity of the State of Iowa. Mrs. R. A. Stephenson. Subscribed in my presence and sworn to before me by said Mrs. R. A. Stephenson this 30th day of March, 1906. O. D. Heald, Justice of Peace in and for said Township, County and State. Filed this 30th day of March, 1906. O. D. Heald, J. P.' That a jury was impaneled in the court of O. D. Heald, justice of the peace, in the above-entitled action in his court, a trial had therein, witnesses examined for the State, and testimony introduced by the State and by defendant, and the case submitted to the jury, and the jury disagreed and was discharged by the said justice of the peace, O. D. Heald, and thereafter the State of Iowa in said action, by G. T. Struble, county attorney of Plymouth county, Iowa filed the following motion, to wit: 'In justice of peace court in and for Garfield township, Plymouth county, Iowa before O. D. Heald, justice. State of Iowa v. David Smith. Motion to dismiss. Comes now the plaintiff in the above-entitled action and moves the court to dismiss the same for the reason that the facts stated in the substituted information filed in said cause do not constitute a crime under the statutes of Iowa. G. T. Struble, County Attorney. Filed April 6, 1906. O. D. Heald, J. P.' That said motion was sustained by the said justice of the peace, and the defendant discharged, and said action dismissed, and the said action and proceeding and dismissal of said action being an acquittal of the defendant of the pretended crime with which the defendant is charged in this action; the facts stated in the information aforesaid filed before the said O. D. Heald, justice of the peace, being the same and identical facts charged against the defendant in the information filed against him in this action, and the acts and alleged crime being the same acts and alleged crime charged against the defendant in this action.

The State filed a demurrer to this plea, and the demurrer was sustained. The record shows the following facts with reference to the charge in the information:

The defendant on the day named in the information in this action received from Roy Stephenson, being a minor the minor named in said information, twenty-five cents, being a quarter of a dollar, in silver, not counterfeit, and at the time he received said money from the minor mentioned, said minor orally requested the defendant to buy him a bottle of beer with the quarter, and the defendant, with the same quarter, went to a saloon in which beer was kept by another person, and in which saloon the defendant had no interest whatever, and purchased a bottle of beer with said twenty-five cents given him as stated by the minor above referred to, and delivered such bottle of beer to said minor, who drank the same. The defendant did not work for the owner of the saloon in which the beer was kept and sold, and he had no connection with the same in any form or manner, except in so far as he purchased the bottle of beer aforesaid and in the manner herein stated. All the transaction and facts herein stated...