State v. Wheeler, 41982.
| Decision Date | 20 June 1933 |
| Docket Number | No. 41982.,41982. |
| Citation | 249 N.W. 162,216 Iowa 433 |
| Parties | STATE v. WHEELER. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Page County; H. J. Mantz, Judge.
The defendant was convicted of having the unlawful possession of intoxicating liquor. Three prior convictions were alleged in the indictment. From a judgment imposing a penitentiary sentence, the defendant appeals.
Reversed.
Earl R. Ferguson, of Shenandoah, for appellant.
Edward L. O'Connor, Atty. Gen., Walter F. Maley, Asst. Atty. Gen., and G. W. Brown, Co. Atty., for the State.
The present conviction of the defendant is the fourth in a series of prosecutions for the violation of the prohibitory liquor laws of this state. When the defendant was arrested and taken in custody by a police officer, a pint bottle, partially filled with alcohol, was found in his overcoat pocket. At the time of his arrest, he was in a state of intoxication and showed, on his person, the effects of a physical encounter. He testified that he and his wife attended a party at which liquor was served, that while present he drank some liquor, but denied that he took any with him to the party or consciously took any away therefrom. He denied that he was consciously in possession of the liquor; affirmed that he did not place it in his pocket; and that he had no knowledge whatever that it was there.
Two specific defenses were urged by the defendant, one that he was so intoxicated that he was incapable of forming a criminal intent and the other based upon the matters already recited that he had no conscious knowledge of the presence of the bottle in his overcoat pocket, or that it was otherwise in his possession. The defense of intoxication was submitted to the jury. The court, however, did not, in its charge to the jury, refer in any way to the claim of the defendant that he had no conscious knowledge of the presence of the liquor on his person. No instruction was requested on this point, nor, as stated, was any given.
[1] The jury was instructed “that the statutes of this state, among other things, provide that no person shall keep in his possession or carry about on his person any intoxicating liquor unlawfully.” The crime charged was not otherwise defined; that is to say, the jury was not instructed as to what constitutes the unlawful possession of intoxicating liquors. No complaint, however, is made by the defendant of the failure of the court to define the crime. The gist of the offense charged is the unlawful possession of intoxicating liquors. Unless the defendant was in the unlawful possession thereof, he was entitled to an acquittal. The defendant, as stated, testified that he had no conscious knowledge of the presence of intoxicating liquor upon his person or in his possession. Obviously, if this testimony was true, the defendant should have been acquitted. State ex rel. Paul v. Straka, 209 Iowa, 572, 227 N. W. 909;State v. Matthes, 210 Iowa, 178, 230 N. W. 522;Morgan v. Koestner, 83 Iowa, 134, 49 N. W. 80;State v. Harris, 106 Or. 211, 211 P. 944;Reynolds v. State, 92 Fla. 1038, 111 So. 285;City of Jackson v. Gordon, 119 Miss. 325, 80 So. 785;State v. Cox, 91 Or. 518, 179 P. 575;In re Baugh, 30 Idaho, 387, 164 P. 529;State v. Trybom, 195 Iowa, 780, 192 N. W. 813.
[2] It was the duty of ...
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