State v. Alderman

Preston, J. l. intoxicating LIQUORS : bootlegging: ments. ' 1. The indictment charges that,’ on or about the 6th of September, 1918, defendant did willfully, feloniously, and unlawfully keep and carry about on his person certain intoxicating liquors, to wit, whisky, with the intent then and there to sell the same, contrary to the statute, etc. This follows the language of the statute. One Carver testifies that, on September 6, 1918, he bought a bottle of whisky from defendant, and paid him for it. He testifies that defendant approached him, and said, “I know where you can get some whisky. Do you want it?” Negotiations were then had as to the price, and Carver said he would go and see if he could get the money. He went away, and did get it, and returned in 15 minutes with it. Defendant, too, left. He returned, shortly, with a quart of whisky, and Carver then said he would take a quart. Defendant said he would have the [246] money first; whereupon, Carver gave him the money. Thereupon, defendant handed Carver a quart of whisky, and Carver stuck it in his pocket. When Carver first noticed the whisky, defendant had it in his hands, and handed it to Carver. This is sufficient to constitute an unlawful sale of whisky ; but it is argued that not all illegal sales of liquor constitute bootlegging. Barr v. Neel, 151 Iowa 458, at 460, is cited. That was an action in equity, by which it was sought to enjoin defendant from maintaining a nuisance in a building. It was held that the evidence was not sufficient to sustain the claim of nuisance, and the plaintiff claimed that defendant should have been held under the bootlegging statute; but there was no evidence that he had done any of the things required to constitute bootlegging. So that it may be conceded that the mere fact of making an unlawful sale of liquor does not, of necessity, in every case, establish bootlegging, under the statute. Under such statute, it must be shown that defendant kept, or carried around on his person, etc., intoxicating liquor, with intent to sell or dispose of the same, by gift, or otherwise, in violation of law. Section 2461-a, Code Supplemental Supplement, 1915. An unlawful sale is not, of course, essential, to make out bootlegging, but the actual selling may prove the intent to sell or dispose, which is essential to bootlegging, and the intent may be shown by some other circumstance than sale. In the instant case, there was a sale. The question is whether defendant had carried the liquor around on his person. It is true that, at the time the negotiations were begun, defendant did not have the liquor on his person, but he did go to the place where he either had it stored, or to his cache, or to some other place, or obtained it in some other manner, and then transported it, or carried it in his hand for some distance, to the purchaser. This was a part of the delivery, and a part of the [247] sale. His hand was a part of Ms person. It is very clear to a majority of the court that defendant was guilty of carrying around on his person intoxicating liquor, with intent to sell the. same. To hold otherwise would be exceedingly technical and finespun. The bootlegging statute does not require the State to show just what distance, or for how long the liquor has been carried. We are not disposed to amend the statute, and fix a rule whether it shall be 50 feet in 5 minutes, or 100 feet in 10 minutes. 2. Intoxicating liquors : bootlegging: essential elements. 2. It was sufficient to prove the venue, and the further fact that defendant carried intoxicating liquor around on his person, with intent to sell or dispose of the same, contrary to law. The jury was so instructed, and there are many complaints of the 16 instructions. The complaints are that they were erroneous and misleading, because the jury was therein told, in effect, that the State was required to prove only the unlawful sale. The only exception taken to the charge is that Paragraphs 1 to 16, “and each and every one of said paragraphs, are erroneous, for the reason that the same, and each of same, are contrary to, law, misleading, and prejudicial to the defendant.” The State insists that this is too indefinite to entitle appellant to review of the charge. We think the position is well taken. Witnesses : credibility : violation of bootlegging statute: jury question. 3. It is thought that the conviction ought not to be sustained, because the witness Carver and his testimony are not credible. Carver testifies to the sale, and this is denied by the defendant. An attempt was made to break down Carver’s testimony, and it must be admitted that there are some contradictions and inconsistencies therein; nevertheless, we are of opinion that the credibility of the witness and his testimony was for the jury, and that, the finding being against the defendant, we [248] ought not to interfere; and this is so even though, if we were sitting as a jury, we might not convict. In State v. Carpenter, 124 Iowa 511, the defendant was convicted of the crime of rape, and sent to the penitentiary. The story told by the prosecuting witness before the committing magistrate tended strongly to show that there was no rape, and that an acquittal would have been justified. It was also claimed that her story was improbable. But her testimony at the trial on the indictment tended to show rape. Her testimony before the committing magistrate was introduced in evidence for the purpose of impeachment. It was held that the credibility of the witness and her testimony was for the jury. Without further discussion, we reach the conclusion that the judgment in this case ought to be affirmed. It is —Affirmed. Ladd, O. J., Weaver, Evans, Gaynor, and Stevens, JJ., concur.