53 Neb. 790 | Neb. | 1898
In the district court of Burt county Hugo E. Nelson was convicted of having in his possession on May 27, 1896, intoxicating liquors, to-wit, whiskey, beer, wine, ale, alcohol, and brandy, kept and intended for sale, and which were being sold without the license which is required in chapter 50 of the Compiled Statutes.
We shall consider but one assignment of error, which is that the court erred in receiving in evidence Exhibit
“In the County Court of Burt County, Nebraska. “The State of Nebbaska, 1
County of Bubt. • /
“To the sheriff or any constable of said county:
“Whereas, Chas. A. Patterson, a credible resident freeholder of said Burt county, has made complaint in writing and upon oath before me, Frank E. Ward, county judge in and for Burt county, Nebraska, that he lias reason to believe, and does believe, that Hugo E. Nelson, of the county of Burt, state of Nebraska, on the 27th day of May, 1S9G, in the county aforesaid, then and there being, did then and there have, and hoav has, in his possession intoxicating liquors knoAvn as Avhiskey, beer, Avine, ale, alcohol, in the cellar and building situated on lot thirteen (13), in .block six (6),- of the village of Oakland, Burt county, Nebraska, said place being kept by him, and that such intoxicating liquors were then and there, and are, intended for sale by said Hugo E. Nelson AA'ithout a license as provided in chapter 50 of the Compiled Statutes of Nebraska for the year 1895: You ;u:v therefore commanded, Avith necessary and proper assistance, to enter in the daytime the said cellar and building kept by the said Hugo E, Nelson, situated on lot 13, in block G, of the village of Oakland, in Burt county, Nebraska,, and diligently search for said intoxicating liquors known as Avhiskey, beer, wine, ale, alcohol, and, if found, you shall seize said liquors Avith the vessels containing the same and keep the same securely until*792 final action be had thereon, and immediately arrest the said Hugo E. Nelson, or the person in charge of said liquors, and bring him before me for examination, to be disposed of or dealt with according to law.
“Given under my hand and official seal, the 27th day of May, A. D. 1896.
“[Seal county court, Burt county.]
“Frank E. Ward,
“County Judge.
“State of Nebraska, \
Burt County. j
“May 28th, 1896, I made diligent search for the goods described in the within warrant and at the place mentioned therein, and have found’ the following: One six gallon tin can containing about three gallons of alcohol, one (1) gallon bottle full of whiskey, one and one-half gallon bottles full of port wine, and one gallon bottle full of blackberry wine, one gallon bottle two-thirds full of brandy, and on the 28th.day of May I researched the premises and found sixty-seven bottles of beer. I now have said goods and chattels and the body of said Hugo E. Nelson present in court.
“J. A. Clark, Sheriff.
“By W. R. Langford, Deputy.”
By the accused it was sought to be shoAvn on the trial of this- case that the alcohol, wine, brandy, and whiskey were necessarily used in liis business as a druggist in the preparation of tinctures, etc. As to the nature of the contents of the sixty-seAren bottles taken on May 28, there was direct conflict in the evidence — that for the accused being to the effect that it was not beer, but was what was called “Hospital Tonic,” a preparation óf the nature indicated by its. name and in its nature, as one witness at least testified, not intoxicating. With this condition of evidence existing, the introduction of the warrant and the return thereon disclosed that a person not examined as a Avitness in this case, who, in the Avarrant, Avas described as a credible resident freeholder, had
Reversed and remanded.