187 Iowa 244 | Iowa | 1919
Lead Opinion
This is sufficient to constitute an unlawful sale of whisky ; but it is argued that not all illegal sales of liquor constitute bootlegging. Barr v. Neel, 151 Iowa 458, at 460, is cited. That was an action in equity, by which it was sought to enjoin defendant from maintaining a nuisance in a building. It was held that the evidence was not sufficient to sustain the claim of nuisance, and the plaintiff claimed that defendant should have been held under the bootlegging statute; but there was no evidence that he had done any of the things required to constitute bootlegging. So that it may be conceded that the mere fact of making an unlawful sale of liquor does not, of necessity, in every case, establish bootlegging, under the statute. Under such statute, it must be shown that defendant kept, or carried around on his person, etc., intoxicating liquor, with intent to sell or dispose of the same, by gift, or otherwise, in violation of law. Section 2461-a, Code Supplemental Supplement, 1915. An unlawful sale is not, of course, essential, to make out bootlegging, but the actual selling may prove the intent to sell or dispose, which is essential to bootlegging, and the intent may be shown by some other circumstance than sale. In the instant case, there was a sale. The question is whether defendant had carried the liquor around on his person. It is true that, at the time the negotiations were begun, defendant did not have the liquor on his person, but he did go to the place where he either had it stored, or to his cache, or to some other place, or obtained it in some other manner, and then transported it, or carried it in his hand for some distance, to the purchaser. This was a part of the delivery, and a part of the
In State v. Carpenter, 124 Iowa 511, the defendant was convicted of the crime of rape, and sent to the penitentiary. The story told by the prosecuting witness before the committing magistrate tended strongly to show that there was no rape, and that an acquittal would have been justified. It was also claimed that her story was improbable. But her testimony at the trial on the indictment tended to show rape. Her testimony before the committing magistrate was introduced in evidence for the purpose of impeachment. It was held that the credibility of the witness and her testimony was for the jury.
Without further discussion, we reach the conclusion that the judgment in this case ought to be affirmed. It is —Affirmed.
Dissenting Opinion
(dissenting). The majority concedes that the mere fact of making an unlawful sale of liquor does not, of necessity, establish bootlegging, under the statute. Barr v. Neel, 151 Iowa 458, at 460, so holds. Statute bootlegging requires, for one thing, the carrying of the liquor about the person. That requirement must have reasonable construction. It being conceded that there may be an unlawful sale of liquor without constituting bootlegging, there must be cases where bootlegging is not established though, literally, the liquor was carried about the person of the vendor. The barkeeper who reaches back to his bar and takes a bottle of whisky in his hand and delivers it to a buyer is, in a literal sense, a.t one time carrying liquor on or about his person. It appears in the majority opinion that, when the negotiations claimed to have been made by the defendant were on, he did not have the liquor upon him, because he went away to- get it. It is true that, before he delivered it,
II. But I press this part no further, because I am satisfied that the verdict should be set aside for being against the weight of the evidence.
Defendant admits he may have been in Collins on tie day on which Carver asserts .he sold him whisky, but denies that he gave or sold Carver liquor of any kind. He testifies that he carried no intoxicating liquors, either on his person or in an automobile, or in any other way. True, his interest affects his denial. But the weight of Carver’s testimony is also not free from all impairment. He testifies he gave one Cure part of the whisky. Cure was a witness, was not interrogated on that subject, and gave no testimony in corroboration of this assertion. And Carver testifies on his own standing when he says that, on the day following the one on which he claims the liquor was sold to him at Collins, he went to Rhodes, and then back to Maxwell; that he had with him a couple of minor boys; and that “these boys got a little of the whisky.” But assume that, at this point, there is such fair conflict as prevents interference with the finding of the jury that the testimony of Carver was shown beyond reasonable doubt to be true. But this is not all. Carver testifies he told Kerns, Shuey, and Cure that he obtained this liquor at Enter
“Q. Isn’t this true: .that you told them these things, and finally they suggested to you that you had to name someone who had sold this to you, and, as you didn’t know the other fellow’s name, you better put it onto John Aider-man? Isn’t that true? A. Did I tell them that? Q. Yes. A. No. Q. Didn’t they tell you that? A. They told me— Q. Go on, now, and tell the jury. A. They told me where I got it, and what kind it was. Q. They told you? A. Yes, sir. Q. Did they tell you how you got it? A. No. Q. *They told you, now, Harry, — they [the officers] told you that they had to charge someone that you knew his name, and you didn’t know the Enterprise fellow’s name, nor the State Center fellow’s name, nor the fellow in Collins with the gray suit, — you didn’t know his name; so you charged it up to John Alderman, so they could have him indicted. Isn’t that true, how? A. Yes, sir.”
The only thing for which it could even be claimed that there is any qualification or retraction of this is testimony on a talk of Carver’s with the county attorney. And that testimony has no such effect. In the first place, whatever was said by or to the county attorney is not a talk with
“And he told him he had told Cure and me where he had got it: he got it at Enterprise. Mr. Langland said, ‘Well, now, we know that this whisky that you got drunk on Saturday night, that you didn’t get it at Enterprise,’ and told him he might just as well tell the truth about it— rather, I think, if I remember right, he told him that he ought to say positive as to where he did get it. Now that is about as near as I remember the run of the conversation there. Thereupon, Carver said: ‘Well, come out here, and I will tell you;’ and they stepped off to one.side, probably 10 feet from us, and the balance of the conversation I didn’t hear much of. Q. You didn’t hear what was said off there? A. Well, all I heard was, I heard him speak John Alderman’s name, — that is about all I heard distinctly.”
All this has not as much as a tendency to'show that “they” did not say to Carver what he swears they did, and that being told this was not what induced him to charge defendant.
The State was at liberty to show, by testimony other than Carver’s, that defendant had sold him liquor — some
I agree, of course, that, ordinarily, the credibility of witnesses and contradictoriness and inconsistencies are for the jury, but submit that here there is more. Here is not a conflict, but a case where public policy demands that the conviction should be set aside. The verdict is based upon nothing but testimony which is not only contradictory and inconsistent, but is that of a completely self-impeached witness. If this .conviction is sustained, it must be sustained although the sole State witness on the vitals confesses that he is unworthy of belief, and testifies without dispute that he accused the defendant because of undue pressure. The verdict can be sustained only by holding that, on appeal, the existence of a verdict conclusively establishes that the verdict has sufficient support. That is not so even on the civil side. Williams v. Budgett, 186 Iowa 196.
Sustaining such a verdict as this is a menace to the honest public. It may be thought by some, that it matters little what evidence is or lacks of being, if it is possible that defendant is guilty. But surrendering all to the mercy of
I would reverse.