Wakeman v. Chambers

• Decision Date: 17 June 1886
• Parties: WAKEMAN v. CHAMBERS.
• Court: Iowa Supreme Court

69 Iowa 169

28 N.W. 498

WAKEMAN

v.CHAMBERS.

Supreme Court of Iowa.

June 17, 1886.

Appeal from Muscatine district court.

The defendant is a justice of the peace, and in a judicial proceeding before him it was adjudged that the plaintiff was guilty of a contempt, and judgment was rendered that he be imprisoned until the order made by the justice was complied with, or he was otherwise discharged, according to law. Upon the application of the plaintiff the district court issued a certiorari, and upon the hearing it was adjudged that the plaintiff was not in contempt, and he was discharged. The defendant appeals.D. C. Cloud, for appellant.

H. J. Lauder, for appellee.

SEEVERS, J.

It became material in a judicial proceeding before the defendant, a justice of the peace, to ascertain whether one Lang had sold intoxicating liquors contrary to law, and the plaintiff, being lawfully summoned as a witness, was asked the following questions: “What is your business? Answer. Proprietor of the Eastern House. * * * Have you bought any beer of Charles Lang within four months last past? A. I refuse to answer. Why do you refuse to answer? A. I refuse to answer. Have you, by yourself or any other person, bought beer by the keg, or any other intoxicating liquor, of said Charles Lang, within four months last past? A. I refuse to answer. Why do you refuse to answer? A. I refuse to tell. I refuse to answer on the ground that my answer would tend to criminate me, as I am so instructed by my attorney.” For refusing to answer the foregoing questions the justice adjudged that the plaintiff was in contempt, and we are required to determine whether the district court erred in holding that he was not.

1. It is provided by statute that “all persons concerned in the commission of a public offense, whether they directly commit the act constituting the offense, or aid and abet its commission, * * * must hereafter be punished as principals.” Code, § 4314. The distinction between accessories before the fact and principals is abrogated by statute, and a public offense includes both misdemeanors and felonies. Code, § 4103. It is contended that as the seller of intoxicating liquors contrary to law is guilty of a public offense, that the purchaser is also, because he aids in the commission of such offense. It is undoubtedly true that if there was no one to purchase there could not be a sale, nor an offense consummated; and yet it is equally true the statute creating the offense does not provide or contemplate that the purchaser is guilty of any offense whatever. The contrary intent, we think, clearly appears. The statute was passed in view of the well-known fact that persons who purchase and use intoxicating liquors frequently become intoxicated, and a few, at least, become confirmed drunkards.

The object of the statute is twofold: the protection of the people of the state, and that class of persons likely to become purchasers as a protection against themselves. Hence it is provided that a person found in a state of intoxication shall be deemed guilty of a misdemeanor, and be punished as prescribed in the statute. But the person so found intoxicated is invited to give information, under oath, when, where, and of whom he purchased or received the liquor, and thereupon the magistrate is authorized to remit the penalty prescribed for being found in a state of intoxication. It cannot be supposed that the legislature, in thus inviting the intoxicated person to inform on the seller, contemplated that he thereby criminated himself in the crime of aiding and abetting in the sale, and was liable to be punished as a principal. The sale of intoxicating liquor is lawful at common law, and it becomes unlawful simply because the statute so provides. Under the statute the sale, or keeping with intent to sell, is a public offense, because the statute so declares. The statutory crime is bounded by the statute creating it, and the statute operates on, and has force and effect against, the persons therein named, and no others. As the prohibitory statute does not provide that the purchaser is guilty of any crime, it seems to us this fact practically ends the inquiry. If such had been the intent, it would certainly have been so provided in express terms. So far from this being so, the implication is clearly the other way. The prohibitory statute does not regard the purchaser as an aider and abettor in any criminal act, and it has been so...