State v. Swallum

Sherwin, J. 1 The instructions of the court submitted to the jury the question of whether the defendant sold intoxicating liquor upon a physician’s prescription, without taking a written request therefor. The only evidence before the court, touching that question, was that of a witness who testified “that he bought prescriptions for others, but did not know how they read, or whether they called for intoxicating liquors or not.” There was, no evidence that the prescriptions sold by defendant to this witness contained intoxicating liquors. The instruction complained of submitted to the jury a material question of fact upon which there was no evidence, and was prejudicial error. State v. Archer, 69 Iowa, 420; White v. Spangler, 68 Iowa, 222; Negley v. Cowell, 91 Iowa, 256. 2 3 4 II. The jury was instructed, in substance, that an applicant for the purchase of intoxicating liquor for his own use must state in his request therefor his residence, by street and number, if he live in a city where the residences are numbered. We think this the proper construction of the statute. If the applicant makes the purchase for another, he must give the street and number of the -user, and in such case is only required to state his own residence generally; but, if he is to use the liquor him [39] self, he must describe his residence with the same particularity required when he purchases for another. In other words, we think the statute requires the'specific location of the user of liquor, if he live in a numbered city. If he does not live in such city, but lives in a town or village, he should give the name of the town or village in which he resides. If in the country, the township and county are sufficient. The contention of the defendant that he may avoid these requirements of the law by proving oversight, forgetfulness, or mistake cannot be sustained. The law provides for the sale of liquor for certain purposes, and. points out the manner of sale, and names the things that the seller must do before making it. The sale of liquor is a special privilege granted to him, to be exercised only in strict compliance with the requiremjents of the statute, and it is his duty to know that he brings himself within the law. To hold otherwise would be to open-wide the door for the evasion of this statute, and give it a meaning- at variance with its intent and purpose. State v. Thompson, 14 Iowa, 122, is directly in point in principle. What we have already said disposes of the objections to the ninth instruction. We cannot agree with the position of counsel for defendant as to the tenth instruction. Section 2835 of the Code provides for the sale of alcohol for specified chemical and mechanical purposes. The request for liquor must state “the actual purpose for which the request is made and for what use desired.” If for medicinal use, it must so state. If for chemical or mechanical purposes, the exact purpose and- use for which required must be specified by the purchaser. No¡ other construction can- be'given the statute, unless we eliminate therefrom the word “specified,” which was placed therein for the evident purpose of guarding against deception and fraud in the sale of liquor. Nor does this holding broaden or add to section 2394, which provides, as we have seen, that “the actual purpose” and “the use for which required” must be stated. 'This instruction correctly [40] states the law, and is supported by evidence. We find no error in the exclusion of testimony. Because of the error pointed out herein, the case is reversed and remanded.— Reversed!