State v. Ward

Seevers, C. J.

1. intoxicating liquors: illegal sales by pharmacist under permit search warrant. —I. It is conceded that the defendant is a registered pharmacist, and that he had been granted a Permit’ as provided in chapter 83, Laws *886, to sell liquors as and for medicine, an^ therefore counsel for the appellee con-*en<3- that the liquor in question was not subject to seizure. Said chapter 83 provides “that nothing herein contained shall be so construed as to shield the person who in anywise abuses this trust, for the legitimate and actual necessities of medicine only, *639 from the utmost rigors of the law, now or hereafter in force, relating to intoxicating liquors.” It is further provided in said chapter that a pharmacist can “sell intoxicating liquors for the actual necessities of medicine only.” To do this he must obtain a permit, which is a personal trust reposed in the pharmacist. If liquor is sold for any other purpose than medicine which is actually necessary as such, the permit ceases to protect the pharmacist, and he is liable to the utmost rigors of the law in force at the time the unlawful sale is made. In determining the contention of counsel, it must be assumed that the defendant sold liquors for purposes other than as medicine, and, this being so, it necessarily follows that search may be made for and the liquor seized, which is owned by a pharmacist, as provided in section 1544 of the Code. If unlawful sales are made, it follows that the liquor is kept for an unlawful purpose, and a search-warrant may be obtained and the liquor seized, for the reason that the statute expressly so provides.

2. _: search warrant: seizure before receipt of warrant: legality of subsequent proceedings. II. When the constable entered the car he had no warrant, and he seized the liquor therein, and removed a portion of it on a dray near the car before the warrant was placed in his hands ; and it . . . , . is insisted that no search or seizure can be lawfully made, without first procuring a f \ J ° . warrant authorizing it to be done. It is said, in the first place, that a search and seizure without a warrant cannot be made, because it is provided in section 8, article 1, of the constitution that the right of the people to be secure in their persons, papers and effects, against unreasonable searches, shall not be violated. This question was considered in Santo v. State, 2 Iowa, 165, and it was held that the statute was constitutional. The only difference between that case and this is that in the former the officer had in his possession a warrant when the search and seizure was made ; and it seems to us that, while the officer in this case may have been guilty of a trespass, yet, as the statute is constitutional, and it must be assumed, in the discussion of this question *640 that the liquor was kept and used for an unlawful purpose, and as a warrant was in fact procured, under which the officer had the custody of the liquor, the fact that the search and seizure may have been illegally made in the first instance would not authorize the court in directing the jury to find for the defendant; and especially is this true when the court was not asked to and did not proceed on this ground. There is a class of cases which, it is said, hold that where a person is by force, artifice or fraud brought into the jurisdiction of the court, he cannot be prosecuted for a crime when jurisdiction is thus obtained. There is a clear distinction between those cases and this. Here the liquor was within the jurisdiction of the court, and the defendant voluntarily appeared. No force, artifice or fraud was used to compel him to do so. It must be remembered that, if the liquor was brought into. the state for any unlawful purpose, it was, under the statute, liable to be seized and condemned, and it is immaterial who had possession thereof when. the warrant was placed in the hands of the constable ; for under it the officer could lawfully seize the liquor.

3. _: _: liquors not in defendant's custody. III. It is further said that the liquor was not in the actual custody or possession of the defendant when it was seized by the officer. This is immaterial for the reason that, unless it was lawfully in the state, it was liable to be seized and condemned; and it was not lawfully here, unless the defendant had a permit which authorized him to own and keep liquors. It is true the defendant had. such a permit; but this did not protect it from seizure if it was brought here for the purpose of being unlawfully sold.

4. _: pharmacist with permit: search warrant proceedings: right of state to appeal. IY. It is provided by statute that an appeal may be taken to the supreme court only for the purpose of obtaining a V correct exposition of the law ” (Code, sec. 4539); and it is claimed that this appeal involves only a question of fact, and therefore the erroneous decision of the district court cannot be corrected, conceding *641 it to be such. For the reasons hereafter stated, we think the question involved in this appeal is one of law and not of fact.

5. _: _: unlawful sales: guilty knowledge. Y. The plaintiff introduced evidence showing that, on January 15, 19 and 28, 1887, the defendant sold to one Folsom one-half gallon of whiskey; and, on the second and twenty-second days of February, he sold to Folsom one quart of whisky; and, on the twenty-second of said month, he sold to said Folsom one-half gallon of whisky. The state also introduced evidence showing that, on January 27, 1887, the defendant sold one Henderson one-half gallon of whisky; and on the eleventh, twelfth, fifteenth, sixteenth, seventeeth, eighteenth, nineteenth, twenty-fourth and twenty-sixth of February, he sold Henderson one-half gallon of whisky; and, on the twenty-third of said month, the defendant sold Henderson one-half gallon of whisky on two different occasions. The state also proved that neither Folsom nor Henderson had a permit authorizing them to sell intoxicating liquors, and that they both were in the habit of becoming intoxicated. The whisky was obtained upon written or printed applications therefor. There was no evidence introduced contradictory to that introduced by the state. The liquor was seized by the constable on the eleventh day of February, 1887. Chapter 83, Laws 1886, provides that a pharmacist holding a permit “shall not accept an application (for intoxicating liquor) from a minor, or person in the habit of becoming intoxicated.” This means that the pharmacist shall not sell intoxicating liquor to such a person. Section 1539 of the Code provides that it shall be unlawful for any person to sell “intoxicating liquor to any minor, * * * or any person who is in the habit of becoming intoxicated.” Under this last statute it was held in Dudley v. Sautbine, 49 Iowa, 650, that the seller was not excused from liability by his ignorance of the fact that the person to whom he sells is in the habit of becoming intoxicated. It follows, therefore, *642 that the state was not required to prove such, knowledge on the part of the seller. As there is no substantial difference between the provisions of chapter 83 and section 1539 of the Code, it follows that both should be construed alike. Both of these statutes make the sale the only thing requisite to the conviction of the seller. Guilty, knowledge, or the intent and purpose of the seller, is immaterial, because the provision is that the pharmacist shall not sell to a person in the habit of becoming intoxicated. Whether a sale can be made to such a person for the actual£ £ necessities of medicine, ’ ’ we have no occasion to determine, for the reason that, under the most favorable view that can be taken for the defendant, that was a question for the jury to determine. We therefore are of the opinion that the district court erred in directing the jury to find for the defendant.

Reversed.