Weinandt v. State

• Decision Date: 21 November 1907
• Docket Number: 15,260
• Citation: 113 N.W. 1040,80 Neb. 161
• Parties: JOHN WEINANDT v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

113 N.W. 1040

80 Neb. 161

JOHN WEINANDT v. STATE OF NEBRASKA

No. 15,260

Supreme Court of Nebraska

November 21, 1907

ERROR to the district court for Cedar county: ANSON A. WELCH JUDGE. Reversed.

REVERSED.

C. B Willey and Millard & Sidner, for plaintiff in error.

W. T Thompson, Attorney General, and Grant G. Martin, contra.

GOOD, C. DUFFIE and EPPERSON, CC., concur.

OPINION

GOOD, C.

Plaintiff in error was prosecuted and convicted for the unlawful keeping of intoxicating liquors with intent to sell the same without license, in violation of section 20, ch. 50, Comp. St. 1905, and brings the case to this court on error.

Plaintiff in error had formerly been a licensed saloon-keeper in the village of Randolph, in Cedar county, Nebraska. After the expiration of his license he continued in his place of business, selling certain liquors under the names of "Cream of Malt" and "Malt Extract." The information charged that "certain intoxicating liquors, to wit, Malt Extract, Cream of Malt, and Hop Soda, were unlawfully owned and kept * * * with the intention of selling and disposing of the same without license or permit, that said intoxicating liquors above described were intended to be and were then and there being by and under the direction of the said John Weinandt unlawfully kept and sold without any license or permit so to do." The evidence disclosed that the plaintiff in error was in the possession of a considerable quantity of bottled liquors that were labeled "Cream of Malt," "Extract of Malt," and "Western Brew Beer." The uncontradicted testimony discloses that the plaintiff in error was keeping for sale and was selling the liquors known as "Cream of Malt" and "Malt Extract." There was no evidence that he had sold any of the liquor denominated "Western Brew Beer." Plaintiff in error sought to justify his possession of this liquor by showing that he had not ordered it, but had ordered Cream of Malt, and by mistake two barrels of Western Brew Beer had been sent to him in place of Cream of Malt, and that, when he opened the barrels and ascertained that they did not contain Cream of Malt, he did not sell any, and closed up the barrels with the intention of returning the same, and that the barrels had been in his possession only a few days when his premises were searched by the officers and the liquors seized. Upon the trial, the evidence as to the intoxicating character of the Cream of Malt and Malt Extract was conflicting. The evidence of the state tended to show that all of the liquors were, in fact, beers of the lighter sort, and that they contained between 2 and 3 per cent. of alcohol. The evidence on the part of the defendant tended to show that they were nonintoxicating malt liquors. The trial court received in evidence, over the objections of the defendant, the search warrant under which the liquors were seized, and the officer's return thereon. The following is a copy of the warrant and the return:

"State of Nebraska, Cedar County; To the Sheriff or any Constable of said County, Greeting: Whereas, before me, C. H. Whitney, county judge within and for said county of Cedar, complaint has been made in writing, signed and sworn to by Benjamin F. Smith, Jr., and filed according to law, that John Weinandt of said county within thirty days last past on lot twelve in block ten in the city of Randolph, in the county of Cedar, in said state of Nebraska, then and there unlawfully sold intoxicating liquors without license or druggists' permit, and that the said John Weinandt is keeping intoxicating liquors in said premises with intent to unlawfully sell the same, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the people of the state of Nebraska; these are therefore to command you to seize the intoxicating liquors found upon the premises above described and bring the same into court, and forthwith to take the said John Weinandt, if he be found in your county; or, if he shall have fled, that you pursue after the said John Weinandt into any other county within the state, and take and safely keep the said John Weinandt so that you bring his body forthwith before me, or some other magistrate having cognizance of the case of said offense so committed, to answer said complaint and be further dealt with according to law. Given under my hand and official seal, this 10th day of November, A. D. 1906. (Seal.) C. H. Whitney, County Judge."

"State of Nebraska, County of Cedar; ss. November 12, 1906, I made diligent search for the goods and chattels described in the within warrant, at the place mentioned therein, and have found the following: Four barrels of Cream of Malt, Malt Extract, and a few bottles labeled 'Beer.' At the same time I arrested the said John Weinandt, and now have said goods and chattels and also the body of the said John Weinandt before the court within named. J. F. Rosenberger, Sheriff."

The admission of this evidence is assigned as error. The state contends that the admission of this evidence was not prejudicially erroneous, and that a jury of intelligent men would not be misled by the reading to them of the charge set forth in the warrant, and would distinguish between the charge and the proof of the commission of the...