184 Wis. 296 | Wis. | 1924
The plaintiff in error, hereinafter called the defendant, was convicted upon the verdict of the jury of having sold a flavoring extract which was unfit for use as a beverage, and which had a content of more than one half of one per cent, of alcohol by volume, for beverage purposes, under such circumstances that he at the time of the sale might reasonably deduce that the purchaser had the intention to use the same for beverage purposes.
On the date of the sale and for a long time prior thereto the defendant conducted a restaurant in the city of Delavan, Wisconsin, and in connection therewith sold soft drinks without having first obtained a license therefor. At his place of business defendant also had on hand for' sale a large amount of flavoring extracts which were unfit for beverage purposes, which were sold in bottles, and which consisted of a liquid the principal ingredient whereof was alcohol, and in volume contents exceeded one half of one per cent. Shortly prior to the 31st day of August, 1923, the date of the sale of the extract herein complained of, one Elmer Kovari, who took his meals at defendant’s restaurant, inquired whether defendant had anything to drink about the place, to which the defendant repliéd that he did not, but that he expected something in very soon. Kovari was a concrete worker employed by one McCarthy, a concrete contractor engaged in doing business in his line at the city of Delavan, and the latter maintained a tent on the
The employer, McCarthy, noticing the condition of Ko-vari and observing the partially emptied bottle on the table, took possession of the same and delivered it to one Blanchard, a druggist in the city of Delavan. The bottle was thereafter delivered to one Tanck, the mayor of the city of Delavan, and then passed into various hands until it finally came into the possession of the prohibition officer, who made various tests of the contents and ascertained that it contained alcohol in excess of forty per cent, in volume. The testimony also discloses that as the bottle passed from one to the other to whom it was delivered, the contents of the bottle remained intact until the tests above referred to were made.
On the 4th day of September, 1923, an officer with a search warrant appeared at the defendant’s place of business, and accompanying the officer were three witnesses, namely, Mr. Sturtevant, Mr. Brabazon, 'and Mr. Tanck, the latter being the mayor of the city of Delavan. When the officer entered defendant’s premises accompanied by the persons above referred to, the defendant invited him and the others to search the premises. Upon this occasion the defendant freely acknowledged to those who were present
The information' contained five counts, the first count charging the sale of intoxicating liquor without a permit. The second count is the one herein referred to, upon which the defendant was convicted. In the third count he was charged with keeping intoxicating liquors for sale for consumption on the premises where non-intoxicating liquors were sold without a license. In the fourth count he was charged with selling non-intoxicating liquors for consumption on the premises without first having obtained a license; and in the fifth count with having in his possession privately manufactured distilled liquor. The third and fourth counts were dismissed by the court, and the jury acquitted defendant on the first and fifth counts. •
Defendant’s counsel strenuously contend that the evidence under the second count in the information is not sufficient to sustain a conviction, and that the court erred in failing to discharge the defendant upon motion of his counsel. A careful reading and consideration of the evidence convinces us that the case made out against defendant was unusually strong and that the evidence is almost conclusive on the subject of defendant’s guilt. The defendant had known Kovari for some considerable time prior to the sale of the extract in question. Kovari was a single man, traveling about the country with his employer and having no permanent home or place of abode, all of which was at all times 'known to the defendant. While engaged at Dela-van, Kovari took his meals at defendant’s restaurant. The defendant did not keep on hand the usual and ordinary extracts used for flavoring purposes, such as lemon extract or vanilla extract. The defendant also knew that Kovari was not engaged in keeping house or. in preparing meals and that he had no use for flavoring extracts for the purpose
To say that the evidence thus referred to does not warrant or sustain a verdict of conviction borders upon trifling with the administration of justice. We cannot see how any jury, under the evidence, could have returned a verdict otherwise than one of guilty.
A number of assignments of error are set forth in defendant’s brief, based upon alleged erroneous instructions. A number of these instructions complained of are not applicable to the particular count in the information on which the defendant was convicted. The other instructions complained of, while perhaps not artfully drawn, do not constitute prejudicial error.
Upon the search warrant issued on the 4th of September a large quantity of extract was seized, and defendant’s counsel argue that this search warrant was illegal and that the extracts seized could not therefore be legally introduced in evidence, and that the reception of such extracts in evidence constituted prejudicial error. We find it unnecessary to consider or decide the question of the validity of the search warrant, for the reason that the officer and those accompanying him at the time of the search were invited onto the premises of the defendant and were requested to search the same. Under such circumstances no warrant was in fact necessary, and the extracts, having been discovered and having been taken possession of, constituted contraband
By the Court. — Judgment and sentence affirmed.