201 N.W. 561 | Iowa | 1925
The defendant was charged, in terms, with the crime of bootlegging, in that he violated the provisions of Section 2461-a of the Supplemental Supplement of 1915. The charge is predicated upon a transaction under date of April 18, 1923, in that, on such date, the defendant sold intoxicating liquor to Martin and Pickett, to wit, a bottle of "jake." The evidence in the record presents no dispute. The question presented to us is solely of statutory construction. The evidence for the State was that, at and before the date of the event charged, the defendant was operating a drug store. Martin and Pickett went to his drug store, and asked to purchase a bottle of "jake." The request was addressed to the defendant, who was, at the time thereof, standing behind his counter or case. Complying with the request, the defendant then and there handed to the purchasers a bottle of intoxicating liquor known as "jake." He took it from a shelf back of his counter, without moving from the place where he was standing when the request was made.
The question presented is, Did such sale constitute the crime of bootlegging? We deem it clear that it did not. Section 2461-a, Supplemental Supplement, 1915, is as follows:
"Any person who shall, by himself, or his employee, servant or agent, for himself or any person, company or corporation, keep or carry around on his person, or in a vehicle, or leave in a place for another to secure, any intoxicating liquor as herein defined, with intent to sell or dispose of the same by gift or otherwise,or who shall within this state, in any manner, directly orindirectly, solicit, take, or accept any order for the sale,shipment, or delivery of intoxicating liquor, in violation oflaw, shall be termed a bootlegger, and shall be guilty of a misdemeanor."
The italics are ours. The italicized portion represents an amendment of the statute as originally enacted. We have construed this statute in several of our cases. State v. Vanderpool,
We have construed this statute as defining a crime analogous to the crime of nuisance, but not identical therewith. The State concedes that the defendant was not guilty of bootlegging, as defined in the original statute. This was settled in Barr v.Neel,
This amendment may carry some infirmity. But assuming it to be wholly valid strictly in accordance with its terms, the actual sale or delivery of intoxicating liquor is not essential to its violation. According to its terms, the offense therein defined is complete where an order is solicited or accepted, regardless of whether shipment or delivery is ever thereafter made. It does not purport to have any reference to any present sale or delivery or payment.
If, therefore, the State proposed to punish the defendant for unlawful sale of intoxicating liquor, it proceeded under the wrong statute. If it proposed to punish him for the maintaining of a place where intoxicating liquor was kept for sale or sold, it likewise proceeded under the wrong statute.
We hold that the evidence failed to disclose a violation of the bootlegging statute. Judgment below is, accordingly, reversed. —Reversed.
FAVILLE, C.J., and STEVENS, ARTHUR, and ALBERT, JJ., concur.