Audubon Republican. [volume] (Audubon, Iowa) 1894-1925, 1921-06-30

Wnlcn time the SnerlII pldceu pOr-
ton of 1t in another bottle, which
was sealed up and delivered to a
chemist in Des Moines The chemist
subsequently analysed this sample
and testified that 1t contained zoos
per cent alcohol and was intoxicat-
ing.
Reverting to the night in question,
it appears that after the transaction
hereinbefore detailed, sometime in
the early morning hours, the wit
ness, Foley, returned to Nash Bridge
for the second time. This time, how
ever, he went alone. He claims that
he found the three remaining bottles
reposing in the weeds by the road
side. These he rescued and carried
to the city dump ground and hid in
the blue grass near the fence. The
dump ground was a place where the
refuse and debris from the city were
deposited. Here they might have
been utterly lost to human ken had
1t not been for the vigilance of the
city marshal. Sometime in August,
1t being impossible for him to fix
the date, this official was moving
weeds with a scythe near the city
dump ground fence when the point
of a scythe struck a bottle and broke
it. The marshal thought that he de-
tected the odor of liquor. He inves-
tigated. He found broken bottle
and nearby he found two other bott-
les intact. He discreetly did not dis
turb these but having moved the
grass from around them, left them
untouched, and later informed the
sheriff of his discovery. The sheriff
in due time went to the dump ground
and secured the two bottles and the
fragments of the broken one. The
contents of one of these bottles
were afterwards sent to the chemist,
who analysed it and found that it
contained about 30.0S per cent of
alcohol. The sheriff identified one
of the exhibits produced upon the
trial as being the bottle he had re-
ceived from the doctor and three
other exhibits as being the two bott-
les and the broken one that he had
found at the dump ground They
we're all quart bottles. None OF the
other witnesses were able to, in any
way, identify the bottles produced
at the trial as icing the bottles
they had previously seen or as being
the bottles testified about in cohnec-
tion with the transaction alleged to
have taken place with the appellant.
1t is urged by the appellant that
the identity of these exhibits was not
established by that degree of proof
required in criminal actions to per-
NIT the introduction of the exhibits
in evidence
The vital question in the case is
whether or not the liquor claimed
to have been purchased of the appel
ant by the witness, Roth, was intox-
icating liquor. This is established,
If at all, solely by the chemical anel-
ysis of the contents of the two bott-
les that were analysed. The witness
es who sampled the one bottle were
unable to classify the contents in
any manner. Unless we are 10 over
rule the established precedents and
the we'll recognized rules Of evidence
in regard to the identity of exhibits
of this character, there was no
sufficient Identification to permit ia
PRODUCTION Of these exhibits in evil
dence Not one of these witnesses,
except the sheriff and the chemist,
testified that the contents of these
bottleswere not changed in any man
err while under their custody or con-
troll. Il is very apparent that the
bottles were left where they were
easily accessible to parties who
knew of their location and that they
could easily have been tempered with
or have been replaced by others.
OF the two bottles that were anal
yzed, there was difference of ten
per cent in the alcoholic contents.
There was no sufficient proof that
the bottles claimed to have been pur-
chased from the appellant were the
bottles offered in evidence, or that
II they were the same, that their con-
tents were in the same condition
when analysed as when purchased.
The preliminary proof in this res
pect is for the Court and unless there
is such preliminary proof Of identity,
1t is error to admit the exhibits and
the proof of their contents to be re-
ceived in evidence.
1t was, therefore, error to permit
the witness, Jordan, to testify as 20
the chemical analysis of the liquor
examined by him, because there was
no sufficient Identification Of it as
reversed"