163 Iowa 616 | Iowa | 1914
The evidence shows without material controversy that the place in question was being occupied by Naughton as a combination residence, barber shop and pool hall. It was also furnished with counter, drinking glasses and ice box. He sold drinks which are spoken of as “soft,” by which we may assume is meant nonintoxieating beverages. It had the reputation in the neighborhood of being a “blind pig,” or place where intoxicating liquors were clandestinely sold. A raid was made upon the premises by the officers of the law, who found some “fifteen or sixteen bottles of beer in the ice box” and other bottles of beer sufficient to make four full cases. There were also quantities of empty bottles and flasks in barrels and other places about the premises. On another occasion, two bottles of beer and nearly a quart of whisky were found in a gunny sack in the kitchen. At the time of the raid, the officers saw two men drinking beer in a closet, but did not see where they procured it. In one of the rooms there were a table, a bottle of whisky, drinking glasses, and empty bottles. One of the officers says a man was drinking in the pool room down stairs, though on cross-examination it would seem that he had reference to the ■ men drinking beer in the closet. One witness swears that on two occasions he gave another person money to get whisky for him, and
The fact being shown, the burden was upon defendant to rebut the unfavorable presumption so created. State v. Intox. Liquors, 109 Iowa, 145.
This we are very clear has not been done. The story of the fishermen may be entirely true so far as it appears in the record, and yet it so lacks connection with the case as to be of little value. As already suggested, no witness testifies to the identity of the beer so purchased with the beer found in defendant’s place of business. The two men who alone could have made this plain, Cook, one of the purchasers, and Naughton, have not testified; a reticence on the part of the defense which is of material significance.
The several parts of the story, as developed by other witnesses, show circumstances which tend to discredit the defense. In the first place, Knoll’s statement is that he sold the beer to Kelly and others “on the night of the raid,” but
For the reasons above suggested, the order dismissing the case is reversed, and there will be a decree of injunction as prayed, with costs of the lower court and of this court taxed to defendants, including an attorney’s fee of $50 to cover services of counsel in both courts. The case will be remanded for entry of decree in harmony with this opinion. — Reversed.