State v. Mulhern ( 1906 )

Bishop, J.

'evidence before grand jury: return of documents. I. Before pleading in the criminal case, the defendant filed a motion to set aside the indictment on' the ground that certain documents used by the grand jury as evidence upon which to base the indictment were not attached to or returned with the indictment. It appears, from testimony mtro- ^ d duced upon the motion, that the county attorney procured from the office of the county auditor certain written requests purporting to have been made to the defendant, a druggist and permit holder, for the sale of intoxicating liquor, and which requests had been filed by defendant with the county auditor in compliance with Code, section 2397; that such requests were used by the county-attorney to aid him in examining witnesses brought before the grand jury, and not otherwise. The written requests were not attached to or returned with the indictment.

The motion was overruled, and we think rightly so. The statute goes no farther than to require that the names of the witnesses before the grand jury shall be indorsed on the indictment, and that with the indictment there shall be presented to the court the minutes of the evidence of such witnesses. Code, section 5276. Here the requests were not even used as evidence; but, had they been, it was not necessary under the statute to return them with the indictment. State v. Mullenhoff, 74 Iowa, 271; State v. Hurd, 101 Iowa, 391; State v. Boomer, 103 Iowa, 106.

' liquors: sale to minors; proof of minority. II. There was evidence showing that sales of intoxicating liquor had been made by defendant to a person under twenty-one years of age; and, as bearing on the subject, the court instructed the jury that a sale made to a person not known or indentified as a proper person of full age would-be illegal. The defendant on motion , ° . . . for new trial insisted, and now insists, that ... ' the instruction involved error, for that proof simply that a purchaser had not attained the age of twenty-one years was not sufficient; the further proof that he was unmarried was essential to a conviction of the defendant. ’Conceding, as we may for the purposes of the case, that proof of marriage would have operated to remove the prohibition of the statute, still we think the contention of defendant without merit. Proof that the purchaser was in fact under 21 years of age made a prima facie case of minority. It was for the defendant to bring forward the proof necessary to take the case out of the rule, and this he failed to do. Sayre v. Wheeler, 31 Iowa, 112.

s. same: canon. III. The statute makes it incumbent upon the holder of a permit for the sale of intoxicating liquor that, before filling a request for liquor presented by a person unknown identifi-to him, he shall require identification and a statement in writing of a reliable and trustworthy person known personally to him that the applicant is not a minor, etc. In respect of such matter, the court-on its own motion instructed the jury in substance that sales made to persons not personally known to the seller must be preceded in each instance by an identification and statement in writing of a third person known to him; further, that a sale to a minor, or other prohibited person not personally known to the seller, could not be justified from the fact of an identification on some former occasion. Appellant complains of the instruction as involving error. We think the contention without merit. It is the intent of the law to require identification in all cases where the proposing purchaser is not personally known. And if a sale would be illegal but for such identification and the required statement, it cannot be transformed into a legal sale by discovery that upon some former occasion a sale had been made to the purchaser in question which was legal because preceded by a proper identification and statement.

The evidence warranted the verdict and judgment in the criminal case and the decree ' in the equity case for injunction; and, no error appearing, such judgment and decree are, respectively, affirmed.