185 Iowa 728 | Iowa | 1919
1. Briefly, the indictment charges that defendant maintained the place with intent to sell intoxicating liquor, contrary to law, and that he did therein sell intoxicating liquor, contrary to law. No evidence was introduced on behalf of the defendant, except that he took the stand and testified that he was a registered pharmacist. It is not shown that he had a permit to sell intoxicating liquors. ■ A motion to direct a verdict for the' defendant
The presumption is not conclusive, and may be rebutted; but there was no evidence in the case tending to rebut it. State v. Wilson, 152 Iowa 529. Section 2385 of the Code provides:
Under this statute, a pharmacist could purchase intoxicating liquors, other than malt, for the purpose of compounding medicines, etc., that cannot be used as a beverage; but he is not authorized to manufacture or sell any preparation or compound which may be used as a beverage, and which is intoxicating.- Under the evidence in the instant case, the substance sold by the defendant could be used as a beverage, and there was, in addition, a quantity of alcohol that could be so used. There is no evidence that defendant kept the alcohol for the purpose of compounding tinctures, etc., or that he did compound the substance sold as Jamaica ginger. The evidence is only that he was a registered pharmacist. Prohibition is the rule in this state, and it was for the defendant to disclose that the alcohol was kept for a lawful purpose. State v. Cloughly, 73 Iowa 626 ; Shear v. Green, 73 Iowa 688; State v. See, 177 Iowa 316; Milhiser v. Gandrup, 146 N. W. 843 (not officially reported) ; Shideler v. Naughton, 163 Iowa 616, 619. The court, ■ by Instruction No. 6; permitted the presumption to be considered as evidence, in connection with a prior instruction heretofore set out, that, as bearing upon the question of
The instructions must all be considered together. So considering them, we think there is no prejudicial error of which appellant may complain. The State argues that, because defendant took the stand as a witness, and testified only to the fact of his being a pharmacist, without denying the State’s evidence, or explaining his keeping of the liquor, which was within his own knowledge, this raises a presumption against him; and that the evidence, if produced, would be unfavorable to him; and that the jury was entitled to consider, not only what defendant testified to, but also what was omitted in his testimony, because the material facts were within his own knowledge. Cases are cited in support of the proposition. Other cases are cited, holding that, upon a trial of one charged with selling spirits without a license, if proof be made of the sale, the jury may presume that the defendant has no license, from his omission to produce one. But we are not disposed to discuss these propositions. There was no instruction asked or given on this, as a guide to the jury. The other matters discussed are controlling.