State v. Brown
| Citation | 109 N.W. 1011,135 Iowa 40 |
| Parties | STATE OF IOWA, Appellee, v. L. W. BROWN, Appellant |
| Decision Date | 11 December 1906 |
| Court | United States State Supreme Court of Iowa |
REHEARING DENIED, MONDAY, JUNE 10, 1907.
Appeal from Harrison District Court.-- HON. O. D. WHEELER, Judge.
INDICTMENT for maintaining a liquor nuisance. Verdict and judgment of guilty, and defendant appeals.
Affirmed.
J. S Dewell, for appellant.
Chas W. Mullan, Attorney General, and Lawrence De Graff, Assistant Attorney General, for the State.
DEEMER. J.
The indictment charges that defendant did continue and use a building erection and place with intent and for the purpose then and there and therein to sell and keep for sale intoxicating liquors, to wit: Whisky, alcohol, and brandy, and did then and there in said building erection and place, sell and keep the same for sale contrary to and in violation of law. While defendant did not in the lower court challenge the sufficiency of the indictment, he now contends that it is insufficient, because it does not charge that he maintained or used the place with intent and for the purpose of keeping for sale therein intoxicating liquor contrary to law, and does not allege that in the building or place he sold the liquor with intent to sell the same contrary to law.
Unless the indictment is so fatally defective as to charge no offense against our laws, defendant is in no position to avail himself of the point relied upon; for he is raising the question for the first time in this court. State v. Potter, 28 Iowa 554; State v. Daniels, 90 Iowa 491, 58 N.W. 891. The exact points made against the indictment are that the first part of it does not allege that defendant kept the place with intent to keep or sell liquors contrary to law; and that in the second part there is no allegation that defendant intended to sell the liquors contrary to law. One other proposition is that the indictment is bad for duplicity. Manifestly this point cannot be made for the first time in this court, so that we return to the two objections above stated.
Little time need be given this matter for in State v. Jordan, 39 Iowa 387, it is expressly held that it is not necessary to allege that the liquors were sold in violation of law or kept in violation of law. The keeping of intoxicating liquors for sale or the sale of such liquors within the State is in itself unlawful, unless the party thus keeping or selling is specially authorized to sell the same, and such authority need not be negatived in the indictment. See, also, State v. Collins, 11 Iowa 141; and section 2424 of the Code with its annotations. The indictment is not vulnerable to the attack now made upon it.
II. Two witnesses, whose names it is claimed were not indorsed upon the back of the indictment gave testimony against the defendant. It affirmatively appears that as to one witness there was no ruling by the trial court, and no exception taken. As to the other, the objection made to the witness' testimony shows that defendant had been served with notice that the witness would be produced. Moreover the record shows a notice that both witnesses would be produced which notice was duly served by the sheriff. The notice was sufficient to justify the introduction of the testimony. State v. Bernstein, 99 Iowa 5, 68 N.W. 442.
III. Other complaints with reference to the testimony given by these and other witnesses are without merit, for the reason that the testimony was withdrawn by the court, not only in its formal charge, but also during the trial. The testimony when introduced was competent, had it been followed up, but the State neglected to make the connection, and the testimony was withdrawn. There was no error here.
IV. It seems that defendant was a registered pharmacist, and that he also had procured a permit from the District Court to sell intoxicating liquors. This permit was granted September 5 1900, and the District Court instructed that it expired September 5, 1903, and that during the year 1904, when defendant is charged with having kept...
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