55 Iowa 494 | Iowa | 1881
The correctness of this instruction is questioned upon two grounds. Eirst, it ’is said that the defendant, having been accused of selling whisky, could not be properly convicted of having sold intoxicating liquor of a different kind, and, in the second place, it is said that if the liquor sold was beer or native wine the defendant would not be guilty, notwithstanding such liquors are intoxicating.
The liquor was described with unnecessary particularity. Code § 1540. State v. Whalen, 54 Iowa, 753. But in State v. Newland, 7 Iowa, 242, it is held that, where a thing necessary to bevmentioned in an indictment is described with unncessary particularity, the thing must be proven as described. It appears to us, therefore, thát the instruction cannot be sustained, and the judgment must be
Reversed.