(dissenting) — I respectfully dissent. I am unable to concur in the majority opinion in certain respects. The decision in this case, as reported in 250 Iowa 1358, 96 N.W.2d 474, disposed of all issues in this case except one. The trial court enjoined and abated the liquor nuisance involved, enjoined the parties from committing further liquor nuisances, assessed a mulct tax of $600 and ordered the seized liquor condemned. "We affirmed the trial court in all respects except that, for reasons set out in the original opinion, the seized liquors were ordered returned to defendant Miller.
If some of the liquor seized without a warrant did not bear the Iowa Liquor Commission seals, it should not have been ordered returned as it was contraband. If some of the liquor did not belong to Miller and if he had no right to the possession of it, such liquor should not be returned to him. If any of it belonged to the other defendants it should not be returned to defendant Miller.
It was clearly not improper to use the liquor, although unlawfully seized by officers of the law, as evidence in this case.
A different question arises where the State of Iowa sells liquor, properly stamped, to one who keeps it in his possession and who is indicted, tried and acquitted by a jury of the crime defined by section 123.3 of the 1958 Code of Iowa.
The defendant Miller was indicted under this section, which reads as follows: “General prohibition. It shall be unlawful to manufacture for sale, sell, offer or keep for sale, possess and/or transport vinous, fermented, spirituous, or alcoholic liquor, except beer as defined in chapter 124, or as the same may hereafter *1377be amended for any purpose whatsoever, except upon the terms, conditions, limitations and restrictions as set forth herein.”
The jury, by its verdict, said Miller was not guilty of selling, offering or keeping for sale, possessing or transporting alcoholic liquors for any unlawful purpose whatsoever. The jury by its verdict said in effect that he had certain liquor and that he did not use it for any illegal purpose. That matter was then adjudicated if a jury verdict can adjudicate anything.
There was no' evidence that others used any of this particular liquor in any manner or for any purpose. If there was evidence this liquor belonged to Miller but others used it for illegal purposes then it should be condemned. None of this liquor is specifically identified with any other person.
Admittedly it was wrongfully seized under section 751.23. I am not interested in a rule of evidence which says that a certain quantum of proof is required in one case and because a lesser amount is required in the other it is therefore admissible.
The majority cite cases where different parties are involved and in so far as that is true they are not in point. I would not wish to see the rule of the case of State v. Tonn, cited by the majority, abrogated but it does not go to the point involved here.
It is my view that as to liquor identified only with Miller and used as evidence against him in the criminal ease there was an adjudication, and that liquor, and that only, should be returned to him.
I deplore the disposition of courts at times to assume the role of reformers and prosecutors. I would prefer to see them administer the Constitutions and the laws as they are written and intended to be administered and I would give to the verdicts of juries the credit and effect to which they are entitled even though I' might disagree with what they do.
I would reverse as to Division I.