State v. Snyder

• Decision Date: 14 March 1919
• Docket Number: No. 32337.,32337.
• Citation: 185 Iowa 728,171 N.W. 8
• Parties: STATE v. SNYDER.
• Court: Iowa Supreme Court

185 Iowa 728

171 N.W. 8

STATE

v.SNYDER.

No. 32337.

Supreme Court of Iowa.

March 14, 1919.

Appeal from District Court, Polk County; Chas. Hutchinson, Judge.

The defendant was indicted, tried, and convicted for the crime of maintaining a liquor nuisance in the city of Des Moines at a drug store called the Victoria Pharmacy. A fine of $400 was imposed, with an order of commitment until the fine and costs were paid. Defendant appeals. Affirmed.Herman F. Zeuch, of Des Moines, for appellant.

H. M. Havner, Atty. Gen., and Ward C. Henry, Co. Atty., of Des Moines, for the State.

PRESTON, J.

Briefly, the indictment charges that defendant maintained the place with intent to sell intoxicating liquor, contrary to law, and that he did therein sell intoxicating liquor contrary to law. No evidence was introduced on behalf of the defendant, except that he took the stand and testified that he was a registered pharmacist. It is not shown that he had a permit to sell intoxicating liquors. A motion to direct a verdict for the defendant was overruled. The undisputed evidence shows that defendant was a druggist and registered pharmacist, conducting a retail drug store. On July 11, 1917, an assistant to the member of the police department, who had charge of enforcing the law relating to the sale of intoxicating liquors in Des Moines, purchased from the defendant a three-ounce bottle of liquor labeled Jamaica ginger. In the afternoon of the same day the same witness went to defendant's drug store, and found a clerk in charge. Witness said to the clerk, “That was pretty good stuff, and I will take another bottle; you had better make it two, because one won't last long.” The clerk brought the two bottles. These last two bottles were labeled Jamaica ginger. The witness paid 25 cents per bottle. The next day the premises were searched. In the rear room behind the customary drug store partition, on a sort of prescription counter, was found a gallon bottle of alcohol, about half full. Back of this prescription case, and near the alcohol, was a bottle containing tincture of ginger and about 300 or 400 small empty bottles. About half of the empty bottles had corks in them. Two five-gallon containers that had been used for alcohol were found. One of them contained two or three gallons of alcohol. Upon analysis the three bottles of liquor labeled Jamaica ginger contained 90 per cent. of alcohol by volume and 78 per cent. by weight. The chemist who made the analysis testified that the liquor which he analyzed would be a tincture of a drug according to the United States Pharmacopœia, and that a dose, when used as a medicine, would be about a teaspoonful; that he found the compounds he analyzed to be in accordance with the compounding with the tincture of ginger, as prescribed by the Pharmacopœia, but he further testified that, because of the alcohol, the liquor labeled Jamaica ginger could be used as a beverage; that it would depend on the person taking it; that a drinking man could drink it. The instructions are nearly all complained of. They are, for the most part, in the usual form, and we shall not set them out fully. The jury was told, among other things, that because of the defendant's plea, the burden of proof was upon the state to prove his guilt beyond a reasonable doubt. Other instructions gave the law as found in Code, § 2384, and other sections of the statute in regard to the use of any building or place for purposes prohibited by the statute. Intoxicating liquor was defined substantially as any preparation, or compound, under any name, form or device, which may be used as a beverage, and which is intoxicating in its character, including pure alcohol, or any compound which can be used as a beverage containing sufficient alcohol to be intoxicating. The jury were further told, in substance, that as bearing upon the question of whether or not defendant kept intoxicating liquor in said building for the purpose of selling the same, the jury should take into consideration the evidence, if any, that sales of intoxicating liquor were made in the premises, and that, if they should find from the evidence beyond a reasonable doubt that intoxicating liquor was sold on said premises by defendant, or by his clerk, with his knowledge and consent, this would be proof that defendant was using said premises for the purpose of selling intoxicating liquor therein. The jury was further instructed that defendant would be guilty if they should find, beyond a reasonable doubt either one or both of the following propositions; (1) That the defendant used said building or room for the purpose of selling intoxicating liquor therein, either by himself, or through others, with his knowledge and consent; (2) that the defendant kept intoxicating liquor in said building for the purpose of selling, exchanging, bartering, or dispensing the same.

[1] Under the first proposition, and under the evidence, the jury could have well found that defendant sold intoxicating liquor as a beverage, and was therefore guilty. See, as having a bearing, Berner v. McHenry, 169 Iowa, 483, 151 N. W. 450. We think appellant has no just cause of complaint of the instructions so far.

[2] 2. We take it that appellant's real contention is that, because defendant was a registered pharmacist, he had a...