State v. Harris
| Decision Date | 16 September 1884 |
| Citation | 20 N.W. 439,64 Iowa 287 |
| Parties | THE STATE v. HARRIS |
| Court | Iowa Supreme Court |
Appeal from Cerro Gordo District Court.
INDICTMENT charging that the defendant "did erect, establish and continue a certain building and place, in which he kept and sold, and kept with intent to sell, all intoxicating liquors to-wit, whiskey, gin, rum, alcohol and wine." The indictment was found in March, 1882, and charged that the crime was committed in April, 1881. The defendant pleaded not guilty, and specially that in January, 1882, and information was filed before a justice of the peace, charging that the defendant kept "with intent to sell, and selling intoxicating liquors, as mentioned in the indictment." The defendant was convicted before the justice, and, on appeal to the district court, he was acquitted. On motion of the state, the special defense pleaded was stricken from the files. There was a trial by jury, verdict guilty, and judgment. The defendant appeals.
AFFIRMED.
Miller & Cliggitt, for appellant.
Smith McPherson, Attorney-general, for the State.
I.
The crime charged in the information is defined in section 1542 of the Code, and that in the indictment in section 1543. The only difference between the crimes as charged is that, under the information, proof of a selling, or keeping with an intent to sell, is sufficient, while, under the indictment it must be shown that the liquor was sold, or kept with intent to sell, in a building or place. The latter is declared by the statute to be a nuisance. The former is not a nuisance.
Under the information, the defendant could be convicted if he had the liquor secreted on his person, and sold it whenever and wherever he could find any one willing to purchase. This is not the crime charged in the indictment. Under it, in order to convict, the state must establish that intoxicating liquors were sold, or kept with intent to sell, in a building or place which is resorted to by persons desiring to procure intoxicating liquors, and which building or place, if properly described in the indictment, can, upon the conviction of the defendant, be found and declared to be a nuisance, and abated. Of such offense a justice of the peace does not have jurisdiction. The facts pleaded in the special defense did not, therefore, constitute a bar to the crime charged in the indictment.
II. The judge of the district court made an order that twenty persons should be summoned as trial jurors for the term, as provided in Code, § 231. Eighteen only appeared, and one was excused, leaving seventeen in attendance, from which the jury for the trial of this case was to be selected. The defendant challenged peremptorily four of the seventeen, which exhausted the panel then present; whereupon the court directed the panel to be filled by calling persons then present in court. To this the defendant objected, and demanded that the panel be filled from the jury lists, as provided in section 232 of the Code. Thereupon the court directed an attachment to issue for the two persons who had failed to appear, and refused to order the panel to be filled from the jury lists, and refused to delay the trial for the return of the attachment. To the persons called to fill the panel the defendant objected, on the ground that they had not been drawn from the jury lists. The objection was overruled. The court had the power to restrict the number of persons to twenty, and the question to be determined is whether, when a portion only of the number of persons so designated appear, the court is compelled to delay a trial until the panel can be filled from the jury lists, and summoned from the body of the county. It may be conceded that ordinarily the provisions of the statute in relation to obtaining jurors should be complied with. The object of the statute is to provide means whereby an unprejudiced jury may be obtained. No penalty, however, is attached for a failure to comply literally with the statute, and we think it must be regarded as directory, and that a simple disregard of its provisions, when error does not affirmatively appear, is not sufficient to authorize a reversal of the judgment. The court is, and must of necessity be, invested with a judicial discretion in this respect, to the end that justice may be obtained, and that unnecessary delays in the proceedings of courts may not occur.
III. The defendant was a licensed pharmacist, and the court instructed the jury that he must have used the "utmost good faith and ordinary caution, to see that liquor is only sold by him as medicine;" and that his license ...
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