State v. Ward & Certain Intoxicating Liquors

• Citation: 75 Iowa 637,36 N.W. 765
• Parties: STATE v. WARD AND CERTAIN INTOXICATING LIQUORS.
• Decision Date: 07 March 1888
• Court: United States State Supreme Court of Iowa

75 Iowa 637

36 N.W. 765

STATE

v.WARD AND CERTAIN INTOXICATING LIQUORS.

Supreme Court of Iowa.

March 7, 1888.

Appeal from district court, Polk county; JOSIAH GIONE, Judge.

An information was filed before a justice of the peace, stating that certain intoxicating liquors were in a certain car of the Wabash Railroad Company, consigned to Hulbert, Hess & Co., and that they intended to sell the same in violation of law. A warrant was issued by the justice, and the liquors were seized by a constable, who made return of such fact to the justice. Notices were posted and given, as required by law, and, upon the day fixed for the hearing, the defendant, C. H. Ward, appeared, and claimed that he owned the liquor, and he was made defendant. He pleaded not guilty, and a trial was had. Judgment was rendered by the justice condemning the liquor, and ordering it to be destroyed. Whereupon the defendant appealed to the district court, where there was a trial before a jury. At the conclusion of the evidence introduced by the state, the defendant moved the court to instruct the jury to find for the defendant, on the ground the state had failed to introduce sufficient evidence to warrant a conviction. This motion was sustained, the jury so instructed, and a verdict in accordance therewith returned; and the state appeals.Baker, Bishop & Haskins, for appellant.

Cole, McVey & Clark, for appellee.

SEEVERS, C. J., ( after stating the facts as above.)

1. It is conceded the defendant is a registered pharmacist, and that he had been granted a permit, as provided in chapter 83, Laws 1886, to sell liquors as and for medicine, and therefore counsel for the appellee contend that the liquor in question was not subject to seizure. Said chapter 83 provides “that nothing herein contained shall be so construed as to shield the person who in anywise abuses this trust, for the legitimate and actual necessities of medicine only, from the utmost rigors of the law, now or hereafter in force, relating to intoxicating liquors.” It is further provided in said chapter, that pharmacists can “sell intoxicating liquors for the actual necessities of medicine only.” To do this he must obtain a permit, which is a personal trust reposed in the pharmacist. If liquor is sold for any other purpose than medicine which is actually necessary as such, the permit ceases to protect the pharmacist, and he is liable to the utmost rigors of the law in force at the time the unlawful sale is made. In determining the contention of counsel, it must be assumed the defendant sold liquors for purposes other than as medicine, and, this being so, it necessarily follows search may be made for and the liquor seized, which is owned by a pharmacist, as provided in section 1544 of the Code. If unlawful sales are made, it follows the liquor is kept for an unlawful purpose, and a search-warrant may be obtained and the liquor seized, for the reason the statute expressly so provides.

2. When the constable entered the car he had no warrant, and he seized the liquor therein, and removed a portion of it on a dray near the car, before the warrant was placed in his hands; and it is insisted that no search or seizure can be lawfully made, without first procuring a warrant authorizing it to be done. It is said, in the first place, that a search and seizure without a warrantcannot be made, because it is provided in section 8, art. 1, of the constitution, that the right of people to be secure in their persons, papers, and effects, against unreasonable searches, shall not be violated. This question was considered in Santo v. State, 2 Iowa, 165, and it was held that the statute was constitutional. The only difference between that case and this is that in the former the officer had in his possession a warrant when the search and seizure was made; and it seems to us that, while the officer in this case may have been guilty of a trespass, yet, as the statute is constitutional, and it must be assumed, in the discussion of this question, the liquor was kept and used for an unlawful purpose, and as a warrant was in fact procured, under which the officer had custody of the liquor, that the fact the search and seizure may have...