State v. Dixon

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

74 N.W. 692

104 Iowa 741

STATE OF IOWA v. JOHN S. DIXON, Appellant

Supreme Court of Iowa, Des Moines

April 6, 1898

Appeal from Cerro Gordo District Court.--HON. 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, attorney general, for the state.

OPINION

GRANGER, J.

The following is the charging part of the indictment: "The said John S. Dixon on the first of February in the year of our Lord one thousand eight hundred and 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, section 2384.Appellant relies on the rule stated in 1 Bishop, Criminal Procedure (3d ed.), section 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 in the use of the word "or."It is true that in many cases its meaning would be to denote one of two...