
    State of Iowa, Appellee, v. Matthew Boever, Appellant.
    1 INTOXICATING LIQUORS: Offenses&emdash;Possession. The unlawful possession of intoxicating liquors is a misdemeanor.
    2 INTOXICATING LIQUORS: • Indictment&emdash;Unlawful Possession&emdash;Evidence. Evidence held ample to establish unlawful possession of intoxicating liquors.
    3 INTOXICATING LIQUORS: Evidence&emdash;Seized Liquors. An adjudieation that liquors seized on a search warrant are intoxicating and have been forfeited is not a condition precedent to the introduction of such liquors against the accused.
    4 CRIMINAL LAW: Former Jeopardy&emdash;Different Offenses in Same Act. An acquittal on an indictment which charges the maintenance of an intoxicating liquor nuisance does not constitute a bar to an indictment which charges the unlawful possession of such liquors, even though the same liquors may appear as evidence in both eases.
    Headnote 1: 33 C. J. pp. 584, 618. Headnote 2: 33 C. J. p. 761.
    Headnote 3: 33 C. J. p. 760. Headnote 4: 16 C. J. pp. 273, 278.
    Headnote 4: 8 R. C. L. 148.
    
      Appeal from Plymouth District Court.&emdash;B. P. Butler, Judge.
    October 26, 1926.
    Rehearing Denied February 15, 1927.
    Defendant was indicted, tried, and convicted for the crime of unlawfully having intoxicating liquor in his possession, contrary to the provisions of Chapter 94, Title VI, of the Code of 1924, and acts amendatory thereto. From a judgment imposing a sentence of three months in the county jail and- a finé of $300 and costs the defendant appeals.
    
    Affirmed.
    
      Kass, Zink & Kass, for appellant.'
    
      Ben J. Gibson, Attorney-general, Herbert A. Huff, Assistant Attorney-general, and George W. Sturges, County Attorney, for appellee.
   De Graff, C. J.

The instant indictment is based on Section 1924, Code of 1924, as amended by Chapters 44 and 45, Acts of the Forty-first General Assembly of Iowa. It is therein provided, inter alia, that no one, by himself, agent, or servant, shall, for himself or any person else, keep for sale or have possession of any intoxicating liquor, except as provided in Title VI of the Code of Iowa. It is further provided that whoever is found guilty of violating any of the prohibited acts as defined in Section 1924 shall be punished as a. bootlegger (Section 1926, Code of 1924), and the penalty is prescribed by Section 1927, Code of 1924, as amended by Chapter 46, Acts of the Forty-first General Assembly. It is obvious, therefore, that the act charged in the indictment is a misdemeanor defined and punished by the criminal code of Iowa. The statute is the ipse dixit in this particular, and the court is not concerned with the wisdom or policy of the legislative enactment.

There is no reason for the application of any.rule of construction. The prohibition of the law is plain that no one shall keep for sale or have possession of any intoxicating liquor except as provided by law. The defendant, as the possessor of liquor, was entitled to show, in defense, that the liquor found in his possession was legally in his possession. In brief, the statute prescribes certain defensive matter (Section 2, .Chapter 42, Acts of the Forty-first General Assembly) which, if established by the defendant, constitutes a defense to the accusation. . No. obligation rests upon the State to allege and prove the provisos, or to'negative the exceptions in the instant indictment. See State v. Kendig, 133 Iowa 164.

The defendant entered two pleas: (1) Not guilty; (2) former acquittal. Upon the conclusion of all the testimony, the defendant filed a motion for a directed verdict of "not guilty~" on the following grounds: (1) The insufficiency of the evidence to justify a verdict of guilty; (2) that the same facts, transactions, evidence, and crime charged in the instant indictment were inclu~ed in an indictment against this defendant in a former case, accusing him ~f the maintenance of a liquor nuisance, and upon trial thereof a verdict of n~t guilty was• returned by the jury; (3) that the same facts, acts, evidence, transactions, and charge in the instant indictment were necessarily included in and a part of the chaage, crime, evidence, and transactions in the former indictment on which the defendant had been acquitted. The~e in~tters were further recited by the defendant in his motion for arrest of judgme~it and for a new trial. It is to these propositions that we no~ gIve consideration.

The evidence is amply sufficient to sustain the verdict. It is undisputed. that, at the tin~e the premises of the defendaint were searched, under a lawful search warrant, a gallon jug of "hootch" was found in a gunny sack in the pantry, and a 15-gallon keg of ~`hoôtch" was f&unid planted in the ground under a shed, 8 or 10 rods from the house. This liquor, when analyze~t, disclosed 49.8 per dent alcehol by volume. It is also shown that the defendant re~isted the search, and, as the officers attempted to go into the pantry, the defe~ndant called to a mas in th~ house, "Du~n~ it, Ed." In pas~ing, i1~ may b~ said that the defendant• offered no evidence in explanation of his posses-. sio~a of the liquor in ~uestiox.

It is cont~nded by the appellaht thaf th~ seized liquor was n~t compet~t evid~n~e and ad~issTh1e against him, for the reason, tbâ± said liqtior had uot been adjudicated to b~ intoxieating liquor aud dec~Iared forfeited by the eourl issuing the search warrant. This claim is nnteii~.ble. It is ~ruè that, under the provisions of Ohapter 42, Acts of the Forty-first General Assembly, the finding of intoxicating liquor in the possession of or under the control of any perso~', under and by authority of a search warrant, "and which shall have been .ftnally adjudicated and declared forfeited by the court, shall be prima-facie evidence, in any action, criminal or civil," under the provisions of Title VI of the Code of Iowa, 1924. This statute provides a rule of evidence relating to tbe effect of the possession of liquor that has been seized and adjudicated as'intoxicating, but it does- not-con-' template that-the facts and circumstances with reference to the execution of a search warrant,- in the absence of an adjudication and forfeiture, shall not be admissible in a criminal-prosecution. In other words, an adjudication and forfeiture is not a condition precedent to the introduction of testimony in a criminal case involving the violation of the prohibitory liquor law.

One further claim of- .appellant’s merits attention. Does the acquittal of the defendant on an indictment for maintaining a liquor nuisance, as' defined by Section 1930, Code of 19-24, as amended by Chapter 46, Acts' of the Forty-first General Assembly, constitute'jeopardy in relation to the indictment in the instant case, when it is shown that substantially the same facts are involved-in both prosecutions?

The-Constitution of Iowa provides-:

“No person shall after acquittal be tried for’the same offense.” Article 1, Section 12.

The Code of Iowa provides:

“A conviction or acquittal by a judgment upon a verdict shall bar another prosecution for the same offense, notwithstanding a defect in form or substance in the indictment on which the conviction or acquittal took place.” Section 13807, Code of 1924. •- • - -. - ...

It may be observed that the State is privileged to charge, in -a liquor nuisance indictment, any one or more or all of the acts prohibited by Section 1924, Code óf 1924, and the different acts so prohibited may be charged in separate counts!' However, the offense is complete by the doing of either of the prohibited acts, and consequently “an indictment charging the- offense [liquor nuisance] to have been committed at a particular time and place by keeping intoxicating liquors with intent to sell the same contrary to law, would be the same'accusation as an indictment charging the offense to have been committed at the same time and place by selling intoxicating liquors contrary to law.” State v. Layton, 25 Iowa 193. See, also, State v. Howorth, 70 Iowa 157.

Different allegations of the prohibited acts in the same indictment are made simply to state the manner of the commission of the offense in different forms. State v. Abel, 198 Iowa 68. This principle of law is not controlling in the ease at bar, for-the reason that the present indictment charges the defendant with a crime other and distinct from the offense charged in the previous indictment. Nor are we dealing with an included offense,, or degrees of the same offense. The essential ingredients of the two crimes, , to wit, liquor nuisance, and the unlawful possession of intoxicating liquor, are not the same, although some of the same evidence (the identical liquor) may be offered to sustain the indictment in each case. The same-evidence test is not infallible. State v. Broderick, 191 Iowa 717. Furthermore, the same act may violate more than one criminal statute.

In State v. Graham, 73 Iowa 553, a plea of jeopardy based on the averment that the charge of keeping intoxicating liquors was the identical keeping charged in an indictment for a liquor nuisance was held not sustainable. See, also, State v. Johns, 140 Iowa 125. These cases are decisive of .the point in issue.

The judgment entered on the verdict is&emdash;Affirmed.

Stevens, Faville, and Vermilion, JJ., concur.  