State v. Fleming

Robinson, C. J.

1. Intoxicating liquors: nuisance: reputation: evidence. I. On the trial of the cause the state was permitted to offer evidence which tended to prove that the defendant was reputed to sell intoxicating liquors in violation of law; that his dwelling house, in which the crime of which he was accused is alleged 'to have been committed, had the reputation of being a place where such liquors were sold; and that men who frequented the place were reported to be of a drinking class. Section 1, chapter 66, of Acts of the Twenty-first General Assembly makes evidence of the general reputation of the place in which a nuisance ■ is alleged to be maintained admissible for the purpose of proving the existence of such nuisance, but that section refers only to actions in equity to enjoin liquor nuisances. Section 12 of the same chapter makes evidence of the reputation of a place admissible against its owner for the purpose of enforcing judgment against it in certain cases. But neither section has any application in criminal proceedings brought to ascertain and punish the crime of nuisance. It is insisted ■ on behalf of the state, however, that the evidence was fully authorized by section 14, chapter 71, of Acts of the Twenty-second General Assembly as it appears in section 2374 of McClain’s Code-; while the defendant contends that it makes such evidence competent in actions against registered pharmacists for illegal sales under permits, but does not authorize such evidence in cases of this kind. That section provided that “on the trial of any action or proceeding against any person for manufacturing, selling, giving away, or keeping with.intent to sell, intoxicating liquors in violation of law, * * * the general repute of the accused' and his place of business and manner of conducting the same, * * * the character and habits of applicants for liquor, and their general repute as to habits of sobriety or otherwise, shall be competent evidence,’and may be considered so far as applicable to the particular case.” That section appears to have been regarded as authority for the admission of the evidence in question. Whether it- would have been competent in any event, we need not determine, for the reason that the section was repealed by section 1, chapter 35, of Acts •of the Twenty-third General Assembly and was not in force when the crime of which the defendant was convicted is alleged to have been committed.

Section 12 of the act last named provides that “on the trial of any action or proceeding against any person for manufacturing, selling, giving away, or keeping with intent to sell, intoxicating liquors in violation of law, * * * the requests for liquors and returns made to the auditor as herein required, the quantity and kinds of liquors sold or kept, purchased or disposed of, the purpose for which liquors were obtained by or from him, and for 'which they were used, the character and habits of sobriety or otherwise, shall be competent evidence, and may be considered as far as applicable to the particular ease. * *’ *” The only part of this section which can be claimed to authorize proof of reputation and habits is the portion we have italicized. To what it was intended to apply is not clear, and, as it has not been discussed nor even referred to by counsel, we refrain from-interpreting it further than is necessary to a determination of this •appeal. It may be claimed that it refers to the defendant in a case of this kind, and to persons to whom he furnished liquor; but, if that be true, it does not authorize proof of the character of persons who frequent the place where the nuisance is alleged to be kept, without proof that they also procured intoxicating liquors there. In this case a witness was asked if she knew the character of the men generally who went in and out of the defendant’s place of business,— whether they were in the habit of being intoxicated,— and answered, “I have heard they were a drinking ■class of men.” An objection to the question, and a motion to strike the answer, were overruled. In this there was error. No attempt was made to show that the men to whom the question and answer referred procured intoxicating liquors in the place in question. It may be conceded that the word “character,” as used in the statute, includes “reputation,” but the answer-of the witness was not given from personal knowledge, and did not purport to show the reputation of the men it referred to for sobriety. It only showed that she had heard that they were a drinking class. How often she had heard that, or from whom, or whether it was • so commonly reported, does not appear.

We think the court also erred in admitting evidence in regard to the reputation of the place where the liquors are alleged to have been sold; not, however, for the reason urged by the defendant, that it was his. dwelling house, but because the words, “the character and habits of sobriety or otherwise,” do not refer to place. In the absence of a statute authorizing it, evidence of the reputation of a person or his place of' business is not competent to prove his acts, or what is-done in the place. Wharton on Criminal Evidence,, section 255.

2. -: -: dwelling house used as place of public resort: presumption. II. The court instructed the jury as follows: “If' you find from the'evidence that the dwelling house or its dependencies occupied by the defendant at the time in question was a place of public resort, or a place which was resorted by genera2 public, then the finding of intoxicating liquors there would be presumptive-evidence that such liquor was kept or held for sale contrary to law; but this presumption of the law maybe overcome by other evidence appearing in the case,, and, unless you find that he kept a place of public-resort, this presumption would not arise from the fact that- he kept liquors there.” The appellant complains of this instruction, on the ground that the place where the liquors were alleged to have been kept and sold was. his private dwelling house, and not a tavern, public eating house, restaurant, grocery, or other place of public resort. We think the instruction was authorized by section 8, chapter 66, of Acts of the Twenty-first General Assembly. A person may make a place of public resort of his private dwelling house, and when he does, so the finding of intoxicating liquors there is presumptive evidence that they were kept for illegal sale.

3. -: -: giving away liquors: instructions to jury. III. The appellant complains of the refusal of the court to instruct the jury that “the giving away of intoxicating liquors by the defendant at his residence would not constitute the crime of nuisance.” The court instructed the jury as follows: “Sixth. Under the-statute, courts and jurors are required. to so construe-the law relating to the suppression of intemperance as. to prevent evasion, and so as to cover the act of giving-as well as selling by persons not authorized to sell; and if you find from the evidence that the defendant during-the time in question gave intoxicating liquors to others, you should carefully scrutinize the transaction, to the end that such acts may not be used to cover violations of the law.” The instruction refused was, under the facts of the case, misleading, and should not have-been given without modification. The first part of the-instruction given was authorized by section 1554 of the Code,, while the latter part was intended to guide the jury in the application of the statute. The appellant cites in support of his objection to the instruction given, State v. Hutchins, 74 Iowa, 20. That case did not involve the crime of nuisance, but was instituted before a justice of the peace. The information charged that the defendant did “unlawfully sell and give away” intoxicating liquors, and it was held that the act of giving away such liquors was not an offense. Gifts of that kind were afterwards prohibited by section 1, chapter 71, of Acts of the. Twenty-second General Assembly, and the prohibition was carried into section 2, chapter 35, of Acts of the Twenty-third General Assembly. Section 12 of the Acts last named provides. that “every permit holder, or his clerk, under this -act, shall he'subject to all the penalties, forfeitures, and judgments, and may be prosecuted by all the proceedings and actions, criminal and civil, and whether at law or in equity, provided for or authorized by laws now or hereafter in force, for any violation of this act and the act for the suppression of intemperance; and any law regulating the sale of intoxicating liquors, and by any or all of such proceedings applicable to complaints against such permit holders.” Whether under this provision, the giving away of intoxicating liquors can in any event be an element in the crime of nuisance, we need not determine, as it clearly refers only to permit holders and their clerks, and there is no claim that the defendant belonged to either of those classes. We think the instruction given might well have been made clearer with respect to gifts and evasions of the law, although it is at least doubtful if any prejudice could have resulted in this case from the language used.

What we have said disposes of all questions we are required to determine. Some of those discussed depend upon the evidence, and may not arise on another trial. For the errors pointed outthe'judgment ■of the district court is reversed.