State v. Gaffeny

• Decision Date: 03 June 1885
• Parties: THE STATE v. GAFFENY
• Court: Iowa Supreme Court

23 N.W. 659

66 Iowa 262

THE STATE v. GAFFENY

Supreme Court of Iowa, Des Moines

June 3, 1885

Appeal from Buchanan District Court.

THE defendant was, on the thirtieth day of November, 1883 indicted for selling intoxicating liquors on the first day of May, 1883. It is alleged that the offense charged is the third; defendant having been twice before convicted of a like offense. A judgment upon a verdict of guilty was rendered from which defendant appeals.

AFFIRMED.

E. E Hasner, for appellant.

Smith McPherson, Attorney-general, for the State.

OPINION

BECK, CH. J.

I. The state failed to introduce evidence tending to prove that defendant had before been twice convicted of a like offense. The court instructed the jury that, in the absence of such proof, the jury were authorized to find defendant guilty, in case the evidence showed beyond a reasonable doubt that defendant was guilty of selling intoxicating liquor contrary to law; in other words, that defendant could be found guilty upon the indictment, though he had not before been convicted of a like offense. This instruction was excepted to, and a motion in arrest of judgment was made, on the ground that the district court had no jurisdiction of the offense, for the reason that there had been no prior conviction.

II. Code, § 1540, provides that, upon the first conviction for the unlawful sale of intoxicating liquors, the accused shall be fined in the sum of $ 20; upon the second, $ 50; upon the third, $ 100, and imprisoned in the county jail for not less than three nor more than six months. It may be assumed that an indictment cannot be found for the first and second offenses prescribed in this section, and that justices of the peace have jurisdiction to inflict punishment therefor.

The question for decision is this: Can the accused, being indicted for a third offense, be convicted of the first? The Code contains the following provisions: "Sec. 4465. Upon an indictment for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the offense, if punishable by indictment." "Sec. 4466. In all cases the defendant may be found guilty of any offense, the commission of which is necessarily included in that with which he is charged."

It is obvious that the offense of which the defendant in this case is charged is not a degree of...