Weinandt v. State, No. 15,260.

CourtSupreme Court of Nebraska
Writing for the CourtPER CURIAM.
Citation80 Neb. 161,113 N.W. 1040
PartiesWEINANDT v. STATE.
Docket NumberNo. 15,260.
Decision Date21 November 1907

80 Neb. 161
113 N.W. 1040

WEINANDT
v.
STATE.

No. 15,260.

Supreme Court of Nebraska.

Nov. 21, 1907.



Syllabus by the Court.

In a prosecution under section 20, c. 50, Comp. St. 1903, for unlawfully keeping intoxicating liquors with the intent to sell the same without a license, it is prejudicial error to permit the introduction in evidence, over objection, of the search warrant under which the premises of the defendant were searched and the liquors seized. Nelson v. State, 53 Neb. 791, 74 N. W. 279, followed and approved.

In a prosecution under said section, it is not error to admit evidence showing the keeping of other liquors in addition to those charged; nor is it error for the jury to taste of the liquors taken from the defendant's premises under the search warrant.

Instructions numbered 6, 7, and 8 examined, and disapproved.


Commissioners' Opinion. Department No. 1. Error to District Court, Cedar County; Welch, Judge.

John Weinandt was convicted of unlawfully keeping intoxicating liquors with intent to sell, and brings error. Reversed and remanded.

[113 N.W. 1040]

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

H. F. Burkett, County Atty., B. Ready, W. T. Thompson, and G. G. Martin, for the State.


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, c. 50, Comp. St. 1903, 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, Neb. 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...

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8 practice notes
  • State v. Dascenzo., No. 2808.
    • United States
    • New Mexico Supreme Court of New Mexico
    • May 31, 1924
    ...534; People v. Kinney, 124 Mich. 486, 83 N. W. 147; Schulenberg v. State, 79 Neb. 65, 112 N. W. 304, 16 Ann. Cas. 217; Weinandt v. State, 80 Neb. 161, 113 N. W. 1040; Reed v. Terr, 1 Okl. Cr. 481, 98 Pac. 583, 129 Am. St. Rep. 861; State v. Baker, 67 Wash. 595, 122 Pac. 335; Enyart v. Peopl......
  • Gallaghan v. United States, 6391
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 28, 1924
    ...727; People v. Kinney, 124 Mich. 486, 83 N.W. 147; Schulenberg v. State, 79 Neb. 65, 112 N.W. 304, 16 Ann.Cas. 217; Weinandt v. State, 80 Neb. 161, 113 N.W. 1041; Reed v. Territory, 1 Okl.Cr. 481, 98 P. 583, 129 Am.St.Rep. 861. Accepting, but neither approving nor disapproving, [299 F. 179.......
  • Nix v. City of Andalusia, 4 Div. 215
    • United States
    • Alabama Court of Appeals
    • June 15, 1926
    ...In Schulenberg v. State, 79 Neb. 65, 112 N.W. 304, 16 Ann.Cas. 217; People v. Kinney, 124 Mich. 486, 83 N.W. 147; Weinant v. State, 80 Neb. 161, 113 N.W. 1040; Reed v. Ter., 1 Okl.Cr. 481, 98 P. 583, 129 Am.St.Rep. 861; State v. McCafferty, 63 Me. 223, it is held not to be error for the cou......
  • State v. Burckhalter, (No. 12794.)
    • United States
    • United States State Supreme Court of South Carolina
    • January 2, 1930
    ...way, and by the exercise of such of their senses as they chose to employ, whether it is intoxicating or not." In Weinandt v. State, 80 Neb. 161, 113 N. W. 1040, 1041, it is said: "While the court would have no authority to direct or compel the jury to taste or sample the liquors, ......
  • Request a trial to view additional results
8 cases
  • State v. Dascenzo., No. 2808.
    • United States
    • New Mexico Supreme Court of New Mexico
    • May 31, 1924
    ...534; People v. Kinney, 124 Mich. 486, 83 N. W. 147; Schulenberg v. State, 79 Neb. 65, 112 N. W. 304, 16 Ann. Cas. 217; Weinandt v. State, 80 Neb. 161, 113 N. W. 1040; Reed v. Terr, 1 Okl. Cr. 481, 98 Pac. 583, 129 Am. St. Rep. 861; State v. Baker, 67 Wash. 595, 122 Pac. 335; Enyart v. Peopl......
  • Gallaghan v. United States, 6391
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 28, 1924
    ...727; People v. Kinney, 124 Mich. 486, 83 N.W. 147; Schulenberg v. State, 79 Neb. 65, 112 N.W. 304, 16 Ann.Cas. 217; Weinandt v. State, 80 Neb. 161, 113 N.W. 1041; Reed v. Territory, 1 Okl.Cr. 481, 98 P. 583, 129 Am.St.Rep. 861. Accepting, but neither approving nor disapproving, [299 F. 179.......
  • Nix v. City of Andalusia, 4 Div. 215
    • United States
    • Alabama Court of Appeals
    • June 15, 1926
    ...In Schulenberg v. State, 79 Neb. 65, 112 N.W. 304, 16 Ann.Cas. 217; People v. Kinney, 124 Mich. 486, 83 N.W. 147; Weinant v. State, 80 Neb. 161, 113 N.W. 1040; Reed v. Ter., 1 Okl.Cr. 481, 98 P. 583, 129 Am.St.Rep. 861; State v. McCafferty, 63 Me. 223, it is held not to be error for the cou......
  • State v. Burckhalter, (No. 12794.)
    • United States
    • United States State Supreme Court of South Carolina
    • January 2, 1930
    ...way, and by the exercise of such of their senses as they chose to employ, whether it is intoxicating or not." In Weinandt v. State, 80 Neb. 161, 113 N. W. 1040, 1041, it is said: "While the court would have no authority to direct or compel the jury to taste or sample the liquors, ......
  • Request a trial to view additional results

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