result.

The vice of this argument is that an organiza- | gaging in the banking business by a corporation of a corporation on paper does not con- tion in circumstances likely to lead to that stitute it a "bank." It is merely a corporate entity which may or may not become a bank. Webster defines "bank" as an establishment for the custody, loan, exchange, or issue of money.

State v. Mosher, 78 Iowa, 321, 43 N. W. 202, and like decisions are relied on. There the statute authorized the board of medical examiners to revoke a license to practice

In Rominger v. Keyes, 73 Ind. 375, is the medicine for palpable evidence of incompefollowing:

"Bank" is defined by Burrill as a "house or place where such business is carried on," and by Bouvier as "a place for the deposit of money," and by Wharton as "a place where money is deposited for the purpose of being let out at interest, returned by exchange, disposed of to profit, or to be drawn out again as the owner shall call for it," and by Abbott as "an establishment for the custody of money, or for the loaning and investing of money, or for the issue, exchange, and circulation of money, or for more than one or all of these purposes. The term is applied to the incorporation or association authorized to perform such functions, to the body of directors, or other officers authorized to manage its operations, and to the office or place where its business is conducted."

Similar definitions will be found in Kiggins v. Munday, 19 Wash. 233, 52 Pac. 858; Hobbs v. National Bank of Commerce, 101 Fed. 75, 41 C. C. A. 205; Reed v. People, 125 Ill. 592, 18 N. E. 295, 1 L. R. A. 324; Morse on Banks (3d Ed.) § 2.

tency, and the court held that by fair implication said board was authorized to refuse a certificate on like ground. A mere reading of section 1877 disclosed how slight the analogy. It provides that:

Whenever "it shall appear to the auditor of state that any savings or state bank has refused to pay its deposits in accordance with the terms on which such deposits were received, or has become insolvent, or that its capital has become impaired, or has violated the law, or is conducting its business in an unsafe manner, he shall, by an order addressed to such bank, direct a discontinuance of such illegal or unsafe practices, and require conformity with the law."

Here follows provisions with reference to inrefuse to comply with the demands made by the vestigation. "If any such bank shall fail or auditor of state, or if the auditor of state shall become satisfied that any such bank is in an terests of creditors require the closing of any insolvent or unsafe condition, or that the insuch bank, he may authorize a bank examiner appointed by him to take possession of any such bank, whereupon the right of levy, of execution, or attachment against such bank or its assets shall be suspended, and the auditor of state may, forthwith, with the assent of the attorney general, apply to the district court or judge such bank, and its affairs shall be wound up thereof for the appointment of a receiver for under the direction of the court, and the assets thereof ratably distributed among the creditors thereof, giving preference in payment to depositors."

[9] These and other authorities plainly indicate that by "bank" is meant a concern engaged in the banking business, and not a nere organization, ready, on permission being granted, to commence such business. Moreover, the chapter does not purport to change existing laws save in the matter of their administration, and especially charges the execution of all laws relating to banking, and imposes on him the duties previousThe matters which will justify the superinly exacted of the state auditor, and among tendent in taking possession, i. e., refusal these is the issuance of a certificate author- to comply with order, insolvency, unsafe izing the commencement of business upon sat-condition, or jeopardy of the interests of credisfactory proof by sworn statement. We dis-itors, ordinarily cannot be foretold, and can cover nothing in the context indicating a legislative intent that any other showing may be exacted by the superintendent of banking as a condition precedent.

[10] As contended by appellant, no one has any vested right in the privilege of organizing a banking or other corporation. The General Assembly likely 10ight impose such conditions as it may deem expedient, even to the exaction of a finding by the department of banking that the establishment of a bank at a particular locality will be for the best interests of the community, as a condition to allowing the corporation to commence business. In several states statutes so provide as do the federal statutes. See Schaake v. Dolley, 85 Kan. 598, 118 Pac. 80, 37 L. R. A. (N, S.) 877, Ann. Cas. 1913A, 254; People v. Brady, 268 Ill. 192, 108 N. E. 1009. But in this state such authority has not been conferred. It is argued, however, that, inasmuch as the superintendent may close a bank and cause its affairs to be wound up, under section 1877

only be ascertained as they come in the exercise of the franchise to do business after being granted. Who would be so bold as to assert in advance that a particular bank or other enterprise is so certain to disobey the law or to become insolvent or in an unsafe condition or to jeopardize the interest of those who have trusted it, and on that ground deny it, though possessed of the necessary capital, the right to do business? No one not claiming the possession of prophetic powers, and doubtless, for this very reason, the General Assembly defined precisely what was to be determined by the auditor (superintendent) as a condition precedent to the commencement of business.

[11] There is nothing in the point nor in the discussion concerning chapter 40 being remedial in character. It merely transferred all matters touched in the three chapters of the Code from the auditor's department to the department of banking and conferred the powers and imposed duties heretofore pos

PRESTON, C. J., and EVANS and SALIN- intent to sell or to give to his employés solely GER, JJ., concur.

uors were sold and kept with intent to sell. [explanation was sufficient was for the jury Both were found guilty. Roberts was grant- to determine. If kept for the purpose of iled a new trial, and a fine of $1,000 imposed legal sale, this was done about as one would on defendant Fountain. in concealing it from the officers of the law. | On the other hand, if it was kept solely for personal use or for the purpose of giving it away without any consideration whatever, the defendant should not have been convicted. The issue as said was solely for the jury.

[1] I. He challenges the sufficiency of the evidence to sustain his conviction. With one De Bolt he operated what is known as a "Temp Bar" at the corner of West Second street and Grand avenue in the city of Des Moines, and for himself conducted a garbage business. On March 21, 1917, policemen searched the premises for intoxicating liquors and found two pints of whisky on the shelf under the bar and back of the bar a government liquor license in De Bolt's name, and in an old store building nearly a half a block distant, where he kept his garbage cans, found a garbage can, among about 100 others, in which there were 14 pints of whisky in pint bottles, and in the hay another pint of whisky, also 12 or 14 empty bottles, and in the desk of his office 7 bottles of whisky.

[2] II. One Dawson operated a horseshoeing shop next to the old barn or store, and owing to objections being sustained was not permitted to say whether he had observed any whisky sales at the "Temp Bar," or persons purchasing whisky or congregating there, or persons going there, or anything indicating that liquors were being sold there. or persons going in and out of there for the purpose of trading or purchasing anything, or whether he attempted to purchase whisky and was refused, or whether he saw any one drink intoxicating liquor there. The several rulings were correct. The answers if given by Dawson, would have had no bearing on the issue except as to defendant's want of knowledge and whether he had obtained intoxicants there, neither of which the state had sought to prove. The character of the general business carried on by defendant and De Bolt was not in dispute, so that this did not furnish ground for the interrogatories, and, in any event, to inquire into the details of their business, save as these related to the sale or keeping for sale of intoxicants, was not relevant to the issues. There was no error.

De Bolt testified that he had purchased the two bottles of whisky found under the bar to take to his wife, who was sick, and Fountain explained that the government license had been procured under the advice of "revenue men" in order to avoid trouble and that, after consulting one Weimer, the license was procured. He denied ever having knowingly or intentionally permitted the clerk, barkeeper, employé, or partner to sell intoxicating liquors at the place or at the time in question, and swore that he did not attend the bar; that he bought the liquor found in the old storeroom or barn the night before, but not with intent to sell or [3-5] III. The defendant was asked: to be sold by himself or any one else; that "Was there ever any intent on your part that this liquor came in two packages, which he intoxicating liquors should be sold at that place? placed in the can, and some of the boys work-A. Mr. Roberts would testify that I have often told him not to let a man have a bottle there." ing there took two or three bottles out; that he bought this liquor from somebody who came around with it; that he intended to take that in his desk home with him, and further:

"I always kept whisky and gave them (the men employed in the garbage business) what they wanted. It is hard to get a fellow to work in the scavenger business unless you give them a little drink, and that is why I appeal this case. I have been 30 years in the business and have always kept liquor for them. There are lots of fellows you cannot get to work unless you give them a little of whisky to drink. Some days it was raining and they came in cold and wet and I would get out a bottle and sometimes I would bring a few into the office so they would not know where it was. If I left it out where they could get their hands on it they might drink it all up at once."

He testified further that he got no pay from the boys, and that De Bolt knew nothing of this. It is manifest from this recital of the evidence that the issue as to defendant's guilt was for the jury. Presumption thereof was raised both by the finding of the revenue stamp and also by the keeping of intoxicating liquors. Section 2382, Code

On motion this was stricken as incompetent, irrelevant, and immaterial. The ruling was correct, as it was immaterial what Roberts might, but did not, testify to.

"Q. Did you instruct your barkeeper to not sell intoxicating liquors? (Objection as suggestive was sustained.) Q. What instructions did you give your barkeeper with reference to selling intoxicating liquors at that place? (The same objection was sustained.)"

These rulings are said to have been erroneous; but, if so, this was obviated by his testimony subsequently that he never permitted any employé or barkeeper to sell intoxicating liquors at the place. Moreover, the matter of intent is not involved in an accusation of selling intoxicating liquors. If the defendant or any one else for himn actually sold intoxicating liquors on the premises he would be guilty, whether he intended so to do or not.

IV. In the third instruction the court directed the attention of the jury to the law under which the defendant was indicted, to his admission that he was owner of the Temp

ed in State v. Hutchins, 74 Iowa, 20, 36 N. W. 775:

"The section evidently requires the statute to be so construed as to forbid all gifts for a consideration, direct or indirect or remote, or made with the purpose of receiving anything in return. Thus, where liquor is given to those who buy other things, or to induce trade or attract custom, or in a hundred different ways which the ingenuity of law breakers has or may devise to defeat the law, it is to be regarded as a violation of statute."

intoxicating liquors were found, and then, at lower wages than otherwise he must have instructed that in order to find him guilty, paid, was for the jury to decide. As remarkas charged in the indictment, the jury must find from the evidence beyond reasonable doubt: (1) That defendant used or assisted in the use of the premises for the purpose of selling intoxicating liquors; or (2) kept or assisted in keeping for himself or others in said premises, intoxicating liquors for the purpose of selling, exchanging, bartering, or dispensing same or giving same in consideration of services or "in evasion of the statute"; and (3) continued to use such premises for the purpose of keeping intoxicating liquors with intent to sell the same. Later on the jury was told that there was no evidence justifying a finding that Roberts "gave intoxicating liquors to any one in consideration of services or in evasion of the statute." This instruction is criticized for the reason, as is said, that there is no evidence that appellant gave liquor "for a consideration," and [8] What is meant by "in evasion of the that the clause "in evasion of the statute" statute" might well have been explained to should have been explained and its meaning the jury, but omission so to do, in the ab expounded to the jury, and that the sugges-sence of a request, ought not to be denounced tion with reference to Roberts impliedly ad- as error. Jurors are presumed to undervised the jury that there was evidence against stand words in common use. State v. Penney, Fountain tending to show a gift by dispos- 113 Iowa, 691, 84 N. W. 509. These need not ing of intoxicating liquor “in consideration of be defined in the absence of a request so services or in evasion of the statute." to do.

Nothing said in State v. Fleming, 86 Iowa, 294, 53 N. W. 234, or State v. Bernstein, 129 Iowa, 520, 105 N. W. 1015, is inconsistent herewith. We do not say that giving whisky to his employés was a mere scheme to keep down their wages and obtain work at a reduced cost, but that such a conclusion was open to the jury.

[9] V. The jury was told in substance that if what was known as the "Temp Bar" was equipped in all respects as a saloon they might take this circumstance into considera

* * *

used for the purpose of keeping for sale or
selling intoxicating liquors. The evidence dis-
closed that the bar was almost a perfect
imitation of the saloon bar, and "has a keg
like a saloon and tubes and the bar fixtures
are
as near an imitation of a saloon
as they can get up, as near as I have ever seen
as far as the fixtures are concerned. I think
they are old saloon fixtures." Why have the
furniture and fixtures been made to resemble
those of a place where intoxicating liquors
are sold, if not for advertising purposes?
There was no error. The fifth instruction
correctly states the law.

[6] There was such evidence, for Fountain testified in substance that he purchased the whisky with the design to give most of it to the men in his employment in order to induce them to continue working for him. His testi-tion in determining whether the place was mony on the subject has been set out. He claimed to have gotten no pay from the boys for the whisky furnished them. The tender solicitude of such a philanthropist for his employés is always very touching. This scheme of reducing expenses in the employment of laborers formerly was quite extensively pursued. The roustabout about the saloon or tavern was paid in drinks, and in numerous large enterprises intoxicants were regularly issued to employés in lieu of a portion of their wages, always to the profit of employers. But the plan has been quite generally abandoned. Under modern methods, payment of fair wages, gauged according to the character and amount of labor exacted, is required; the workmen are allowed to determine for themselves how and for what it shall be spent. And if defendant, by pandering to the appetites of men, induced them to labor as scavengers at wages received in more cleanly employments, and thereby turned into his coffers the difference between such wages and what he otherwise must have paid less the cost of the whisky given to them, he is not in a situation to plead this was a mere giving away, or that it was not disposing of it for a consideration.

[10] VI. Appellant was given the extreme penalty, a fine of $1,000. The offense does not appear to be other than the first of which he has been convicted. He seems to have been a person of some business capacity and influence, and should have known better than to pursue the course he did. The penalty imposed, however, should be measured somewhat by the manner of the offense and the character of the offender dealt with, and so doing, we are inclined to regard the fine as somewhat more than was demanded, and therefore modify the judgment by reducing the same to $600.

As so modified, the judgment is affirmed.

[7] We are of opinion that whether he was keeping the whisky with intent to sell, or to give to his employés solely as a gratuity, or

PRESTON, C. J., and EVANS and SAL

In re OSBORN'S ESTATE. OSBORN et al. v. WHITLOW. (No. 32074.)

(Supreme Court of Iowa. June 24, 1918.)

legitimate child of testator, and that it was to be considered only as indicating a reason, if any, operating upon testator's mind. Held that, while there was very little reason for introducing the paper, it was not reversible error to receive it for the limited purpose for which it was received; contestant having brought it into the case with some display.

1. WILLS 324(4)-EXECUTION-EVIDENCE-6. EVIDENCE 159-COPIES-Loss of ORIGISUFFICIENCY.

Evidence as to execution of will held sufficient at least to go to jury as against objection that execution had not been proved by two competent witnesses as required by statute. 2. TRIAL 46(2)—OFFER OF EVIDENCE-SUF

FICIENCY.

Where cross-examination as to conviction of witness for proponent was properly excluded under Code, § 4613, and there was no suggestion that the offer was made under section 4602, contestant is in no position to complain of ruling conceding that evidence was admissible under the latter section.

3. WITNESSES 345(2)-IMPEACHMENT.

Under Code, § 4602, providing that facts which have heretofore caused the exclusion of testimony may well be shown for the purpose of lessening its credibility, and section 4613, providing that a witness may be interrogated as to his previous conviction for a felony, but no proof is competent except the record thereof, where a witness for proponent was on cross examination confronted with an indictment found against him some 20 years ago for unlawfully spiriting away a witness and interrogated concerning the same, the cross-examination was properly ruled out as improper and incompetent in view of section 4612, protecting a witness against any cross-examination which would tend to expose him to public ignominy except as provided in section 4613.

NAL.

confession of testator's wife as to paternity of
Where a paper purporting to be a copy of a
contestant was introduced, and not its recitals,
the rule as to proof of loss of the original be-
fore introducing a copy was not involved.
7. NEW TRIAL 140(3) MISCONDUCT OF
JUDGE AND JURY-EVIDENCE.

Showing made held insufficient to require the granting of new trial for misconduct of jury in their deliberations and for erroneous conduct of the trial judge in connection with such delib

erations.

8. TRIAL 312(2) - RECALL OF JURY REREADING INSTRUCTIONS.

trial court to re-read instructions a little slow-
The jury being recalled, it was not error for
er and with increased emphasis.

9. NEW TRIAL 56-MISCONDUCT OF JURY.
duct of the jury unless prejudice is shown.
A new trial will not be granted for miscon-
10. NEW TRIAL 143(3)-IMPEACHMENT OF
VERDICT.

The claim of a juror that he yielded to
mere weariness or weight of numbers is only
impeachment of the verdict and of the juror
himself, and is not permissible.
11. WILLS

55(1) INCOMPETENCY - EVI

DENCE. Evidence held insufficient to show mental incompetency of testator.

Appeal from District Court, Madison
County; L. N. Hays, Judge.

This is a will contest. The contestant is
There was a

a daughter of the deceased.
verdict sustaining the will, and the contest-
ant has appealed. Affirmed.

Robbins & Smith, of Winterset, for appellant. A. W. Wilkinson, Jno. A. Guiher, and J. P. Steele, all of Winterset, for appellees.

4. BASTARDS 3-PATERNITY-PRESUMPTION. In a contest suit the attorney who drew the will testified to certain statements made to him by the testator at the time the will was formulated. These were to the effect that he doubted the paternity of contestant, and that his wife had made a written confession implicating another as the father; that he had a copy of such confession at home and had given the original to his then attorney. This evidence was introduced without objection. After full cross-examination of the witness on the subject counsel for contestant moved to strike all the testimony on that subject. The motion was overruled, with a statement by the court that it could be con- EVANS, J. The testator is known in the sidered as bearing only upon the testator's rec- record as Dal Osborn. The contest was basollection of his family and as to the reason heed upon alleged mental incompetency and had, if any, for the disposition made. Held, that said testimony did not open up any issue as to paternity of contestant, and that testimony of a conversation with testator wherein he in effect acknowledged paternity was properly excluded; it being expressly conceded that contestant was born in lawful wedlock, raising conclusive presumption that she was the child of

testator.

5. APPEAL AND ERROR 882(8)—ADMISSION OF IMPROPER TESTIMONY-REVERSIBLE ERROR.

One of the beneficiaries under the will was called as a witness for contestant and interrogated concerning a search among testator's papers. The result of such examination was the production of a copy of a purported confession of the wife as to the paternity of contestant testified to by the attorney who drew the will. On cross-examination proponents offered the copy in evidence. The court received it, stating that the paper would be admitted for a limited purpose only to be stated in the instructions. The instructions expressly admonished the jury that the paper was not to be considered as tend ing to show that contestant was not in fact the

undue influence. No evidence was offered, however, on the question of undue influence, and such issue was not submitted to the jury. The testator died July 29, 1915. The will was executed on July 26, 1911, and on its face appears to be executed in due form. The testator was married to the contestant's mother on March 23, 1881. A few days thereafter the contestant was born in lawful wedlock. At the time of the testator's marriage both civil and criminal proceedings were pending against him wherein he was charged with the paternity of the unborn child. After the marriage the parties lived together for several months as husband and wife. In November following the wife left the testator together with her child. In 1884 the testator obtained a divorce from his wife on the ground of desertion. No question is made of the paternity or of the legitimacy of the