State v. Waynick

45 Iowa 516 | Iowa | 1877

Adams, J.

i criminal tiñ'?l{quors^’ nuisance. Section 1526 of the Code contains the following provision:

“Any citizen of the State except hotel-keepers, keepers of saloons, eating houses, grocery keepers and confectioners, is hereby permitted, within the county .of his residence) to buy and sell intoxicating liquor for mechanical, medicinal and sacramental purposes only, provided he shall first obtain permission from the board of supervisors of the county in which such business is to be conducted.”

The four sections following the said section provide for the manner of obtaining such permission. Other sections provide the manner of conducting the business. Others still, provide the grounds for which and the manner in which the permission may be declared vacated. Sec. 1540 provides that, “ if any person not holding such a permit, by himself, his clerk, servant or agent, shall, for himself or any person else, directly or indirectly, or under any pretense or by any device, sell to any person intoxicating liquor, he shall be deemed guilty of a misdemeanor,” etc.

The defendant was not indicted under this section, but was indicted for the crime of nuisance. The theory of the District Court, we think, must have been that a person selling without a permit is subject to punishment only tinder said section 1540. Rut section 1543 provides that, “ in cases of violation of the provisions of either the three preceding sections * * * the building or erection of whatever kind, or the ground itself in or upon which.such unlawful manufacture or sale, or ke.eping with intent to sell, of any intoxicating liquor is carried on * * * is hereby declared a nuisance and may be abated as the law provides; and in addition to the penalties prescribed in said sections, whoever shall erect * * * or use any building * * for any of the purposes prohibited in said sections shall be deemed guilty of a nuisance and may be prosecuted and punished accordingly, in the manner provided by law.” ,It appears then that, by section 1540, the selling of liquor without a permit is made a misdemeanor, and the person guilty is punishable as therein prescribed; and, by section 1543, any person who uses a building to violate the provisions of section 1540 is guilty of a nuisance and may be subjected to additional penalties for the crime of nuisance.

We think that the District Court erred in its instructions, and that the case must be

Reversed.