State v. DiXon

• Decision Date: 06 April 1898
• Citation: 104 Iowa 741,74 N.W. 692
• Parties: STATE v. DIXON.
• Court: Iowa Supreme Court

104 Iowa 741

74 N.W. 692

STATE

v.DIXON.

Supreme Court of Iowa.

April 6, 1898.

Appeal from district court, Cerro Gordo county; John C. Sherwin, Judge.

Indictment for maintaining a nuisance. Verdict of guilty, and judgment thereon, from which the defendant appealed. Affirmed.Cliggitt & Rule, for appellant.

Milton Remley, Atty. Gen., for the State.

GRANGER, J.

1. The following is the charging part of the indictment: “The said John S. Dixon on the 1st of February in the year of our Lord one thousand eight hundredand ninety-seven, in the county aforesaid, did unlawfully establish, keep, use, maintain, and continue a certain building or place in the city of Mason City, Cerro Gordo county, state of Iowa, for the purpose and with the intention of unlawfully keeping, selling, and giving away in said building or place aforesaid, in said county and state, intoxicating liquors, to wit, whisky, beer, gin, brandy, and other intoxicating liquors to the grand jury unknown, and did then, and at said building or place in said county, unlawfully keep, sell, and give away the said intoxicating liquors, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Iowa.” It is said that the indictment is so equivocal, uncertain, and doubtful that a conviction under it cannot be sustained, because of the use of the word “or,” so that the locus is expressed as “a certain building or place,” “in said building or place,” and “at said building or place.” These several expressions occur in the indictment. The language of the statute is, “And whoever shall erect or establish, or continue or use any building, erection or place for the purposes prohibited in this section, shall be guilty of a nuisance.” Code, § 2384. Appellant relies on the rule stated in 1 Bish. Cr. Proc. (3d Ed.) § 586, as follows: “If a statute makes it a crime to do this, or that, mentioning several things disjunctively, all may, indeed, in general, be charged in a single count; but it must use the conjunctive ‘and’ where ‘or’ occurs in the statute, else it will be defective as being uncertain. All are but one offense, laid or committed in different ways.” The section has reference, not to the place of committing an offense, but to the manner of its commission. The following, being a part of the preceding section (585), seems to us to be more applicable to the question under consideration: “Whenever the conjunction ‘or’ would leave it uncertain which of two things is meant, it is inadmissible, and in its stead ‘and’ may be employed, if it makes the required sense.” To us there is no uncertainty...