72 Iowa 541 | Iowa | 1887
Lead Opinion
It was proven on the trial that defendant is a registered pharmacist; also that, at the time of the sales charged, he held a permit from the board of supervisors of the county authorizing him to buy and sell intoxicating liquors for medicinal, mechanical, culinary and sacramental purposes. If has been urged in argument that the provision of section
We think that the demurrer should have been sustained, or that the state should have been restricted, in the introduction of its evidence on the trial, to such as tended to sustain a single sale.
“The law gives registered pharmacists, holding permits*544 from tbe board of supervisors, the right to sell intoxicating liquors for the actual necessities of medicine only, under certain provi sons, to-wit: The party to whom the sales are made must sign a written or printed application for the liquor bought, specifying the purposes for which it is to be used, the kind and quantity, and when such application is made. The pharmacist, however, cannot lawfully sell the liquor on such application if he has reason to believe that the application is not made in good faith, and that the liquor would be used as a beverage; and he must, at his peril, use reasonable care and caution to ascertain for what use it is intended. (2) On or before the 10th day of each month, said pharmacist shall make to the county auditor a complete report, verified by his affidavit, showing all sales of intoxicating liquors made during the preceding calendar month, to whom sold, and the purpose for which the same was to be used, as represented by duplicate applications executed by each purchaser. (3) No pharmacist can accept an application from a minor, or from any person who is in the habit of becoming intoxicated; nor from one whose relatives have given the said pharmacist written notice that such person uses intoxicating liquors as a beverage; nor can they sell it at a greater profit than 33-J per cent. If you find from the evidence, beyond all reasonable doubt, that defendant did sell intoxicating liquor to any person at and within the county of Union and state of Iowa, within one year prior to the 18th of August, 1886, then the burden is on the defendant to show, by a preponderance of the evidence, that said sale was lawful.”
These instructions cannot be sustained. The jury would understand from them that, if sales were proven, it would be their duty to convict the defendant, unless he had shown that they were lawfully made, and that to establish their lawfulness he must prove that he had complied with the requirements of the statute enumerated in the first instruction, in the matter of making monthly reports, and as to the profit at which he had sold the liquors. The defendant was
REVERSED.
Dissenting Opinion
(dissenting.) The statute authorizes several counts to be joined in one indictment, charging separate acts of selling liquor in violation of law, each constituting a distinct offense. In my opinion, a count which would be good as the averment of the offense in case only one were alleged in the indictment is sufficient when more than one offense is charged in a single indictment. But it is said that, as the language of each count is the same, all are to be understood as alleging the same crime. This conclusion is based upon the presumption that the pleader, in drawing the indictment, did the vain and absurd thing of repeating twenty-eight times the same language to describe the identical act. Such presumptions are not indulged to defeat a pleading either in a civil or criminal case. But if the several counts do in fact describe the same offense, and were so intended, this fact may and should be shown upon the trial. If there was but one act of selling, instead of twenty-eight, that fact would be readily and certainly disclosed upon the trial, and defendant would be convicted upon .one count only of the indictment.