State v. See

Preston, J.

i. intoxicating liquors;, nuiof agentiability 1. Tbe claim of the State is that defendant sold intoxicating liquors to two persons who were acting as state agents under the so-called State Agents’ Act, being Sections 65-a to 65-d, inclusive, Code Supplemental Supplement, 1915. There was also rsr j Science of a search where bottles of liquor were seized and later condemned. The defendant denied that he ever at any time sold liquor to either of these parties, but claims that on one occasion he did *318 buy liquor of another person as a favor for one of the agents. The defendant claimed that he was not the owner of the place, but was running it for his mother. It is not material whether he was running it or whether he was acting as a clerk or employee for his mother.

2‘ defensesen-^' tpxtaat?n¿m" ■ One of the agents, after testifying to the fact that he was working under the directions of the attorney general, testifies, in substance, that he bought one half-pint of whisky from defendant, which defendant put in a pint bottle, — and the liquor was produced, with the private mark of the agent thereon; that he paid defendant 50 cents for it; that defendant got the bottle from under the counter in the lunch room and went back into the kitchen, came back and delivered the bottle in the front room, and then he gave defendant 50 cents for it. He says he did not pay the 50 cents until after defendant had delivered to him the liquor; denies that he told defendant that he was cold or frozen or anything of that kind.

The other state agent testifies to a similar transaction, but at another date, and testifies that at still another time he bought a pint of whisky of defendant, and that he saw two or three other people buying intoxicating liquors there at other times.

The contention of defendant is that, even though the jury should find that defendant sold liquor to either of the state, agents, it was procured at their instance and request; and because of the fact that they were agents for the State, buying the liquor with money furnished or repaid by the State, the State could claim no liability on the part of the defendant, because the crime of which defendant was charged was committed at the solicitation of and instigated by the State. The statutes referred to are, substantially, that the duty of such state agents is to aid in the capture, detention, arrest and prosecution of persons committing crime or violating the laws of the state. We think there is no merit in this claim, because there is no evidence to show that the agents, at the time in *319 question, improperly solicited the defendant to commit the acts. The transaction appears to have been the ordinary one of a person calling for a certain article and purchasing it. The purpose was to ascertain whether defendant was violating the law, and the acts of such agents in procuring testimony in this manner are no different from the act of a detective in procuring evidence. The holdings are that it is not a defense to a prosecution for the illegal sale of intoxicating liquors to show that the purchase was made by a detective or hired informer; There is a clear distinction between inducing a person to do an unlawful act for the purpose of prosecuting him, and catching him in the execution of a criminal design of his own conception.

3' Sia^instmc^1 ae^rabiiuy of Vfvpílict 2. After the jury had been out a considerable time, the court called them in and gave an additional instruction, the purpose of which, as defendant contends, was to induce the jury to arrive at a verdict. The instruction is worded substantially the same as like instructions which have been approved in State v. Richardson, 137 Iowa 591 ; Armstrong v. James & Co., 155 Iowa 562 ; State v. Jackson, 156 Iowa 588 ; State v. Mulhollen, 173 Iowa 242 . The instruction has been criticized and is objectionable to some members of the court, and, as said in some of the cases, it has been disapproved by the entire court under certain circumstances. But there is nothing appearing in this case to warrant a reversal because of the giving of this instruction.

4' LiOT<Sstnuitions: presumpsale as affecting burden of proof. 3. One of the instructions given by the court is complained of, and the thought of appellant is that it cast the burden upon defendant to show that the liquors found under the search warrant and the seizure and the liquor sold were not kept for unlawful purposes, and that the burden of proof m a criminal case never shifts to defendant. The court instructed the jury in other instructions that the State must prove the defendant’s guilt beyond a *320 reasonable donbt before a conviction would be justified. The instruction complained of has reference to intoxicating liquors found in defendant’s restaurant, a public place, and the sales therein by one not legally authorized to sell or use the same. Under the statute, the finding of such liquor raises a presumption that it is kept for unlawful purposes. Sec. 2427, Code, 1897. The instruction has support in State v. Cloughly, 73 Iowa 626 ; State v. Wilson, 152 Iowa 529 . In the last named case, the trial court did not instruct that the presumption was rebuttable; that there was no evidence in the record in that case to overcome the presumption. In the instant case, the court did instruct the jury that the presumption was rebut-table. We think the instruction is as favorable to defendant as he is entitled to ask.

4. It is contended by defendant that the county attorney was guilty of such misconduct in the closing argument as to warrant a new trial. The statement complained of is as follows:

5' memuf^ounargument: cur-J jqg" gppor, “Mr. Elgin’s statement to the jury that if you convict this man you are going to , deprive his wife and their children of their support, I say to this jury that during the last twelve months very little of that time has he lived with his wife, and very little time has he supported his children, and even now is under indictment for wife desertion and on bond requiring the support of his wife.”

Upon objection’s being made to the remarks made by the county attorney, the court said:

“The discussion made by counsel for defendant to the effect that it would deprive his wife and family of support, should they find him guilty, and the reply made thereto by the county attorney just now, are both improper, and this jury should not take either one of these statements into- consideration in your deliberation upon the case.”

We think the court was right about this, and that the remarks of the county attorney were in response to those by *321 Mr. Elgin, defendant’s attorney, and the admonition by the court to the jury not to consider either of the statements cured the error, if any there was.

s. tmal : deliberations of jury: nonMntroduced Seíobjectlon. 5. It is also assigned as error that the court permitted the jury to take with them a certain railway book showing the receipt and delivery of intoxicating liquors, when only a part of the entries in the book had been introduced in evidence. The record shows that the railway agent testified to the keeping of the book under his supervision, and it was a record kept of liquor received and delivered. The book was marked Exhibit F. The State offered in evidence one item, No. 419, showing a delivery to defendant of one box of liquor containing two dozen pints of whisky, and item No. 410, showing the delivery of box of whisky containing one gallon; also No. 138, showing the delivery to him of one box containing one gallon of liquor; also No. 913, for one case of bottled whisky, containing 24 pints. These several items were objected to by the defendant, and the objection overruled. No objection was made to the jury’s taking the book to the jury room. The first objection appearing in the record was made by defendant after the jury had been deliberating for a period of about 40 hours, having the book in their possession at that time. We think there was no error at this point.

We have noticed all the errors assigned, and discover no reversible error, and the judgment is therefore — Affirmed.

Evans, C. J., Deemer and Ladd, JJ., concur.