State v. Hayes

• Decision Date: 25 September 1885
• Citation: State v. Hayes, 67 Iowa 27, 24 N.W. 575 (Iowa 1885)
• Parties: STATE v. HAYES.
• Court: Iowa Supreme Court

67 Iowa 27

24 N.W. 575

STATE

v.HAYES.

Supreme Court of Iowa.

Filed September 25, 1885.

Appeal from Story district court.

The defendant was accused, by indictment, of the crime of nuisance. He was tried by a jury, and found guilty, and the court sentenced him to pay a fine, and the costs of the prosecution, and from this judgment he appeals.F. D. Thompson, for appellant, D. D. Hayes.

A. J. Baker, Atty. Gen., for the State.

REED, J.

1. The indictment was returned on the twenty-third day of August, 1883. Afterwards, during the same term of court, defendant appeared and waived the arraignment, and further time was given him within which to plead, and the cause was continued. At the next term defendant was put upon his trial. It does not appear from the record that he ever pleaded to the indictment. The cause was tried, however, in every respect as though a plea of not guilty had been entered. It is now insisted that the court erred in placing defendant on trial without a plea to the indictment having been entered. The case, in this respect, is like State v. Greene, 23 N. W. Rep. 154, in which we held that the error in putting the accused on trial without a plea having been entered, was a mere technical error or irregularity, which did not affect the substantial rights of the parties, and afforded no ground for reversing the judgment. We are satisfied of the correctness of our holding in that case, and, under the rule there laid down, we cannot disturb the judgment in the present case on this ground.

2. It is charged in the indictment that defendant occupied and used a building and place in which he kept intoxicating liquors, with intent to sell the same contrary to law. It was proven on the trial that defendant was engaged in the business of keeping a drug-store. Also that he was a registered pharmacist, and that he held a permit from the board of supervisors of the county authorizing him to sell intoxicating liquors for medicinal, mechanical, culinary, and sacramental purposes. It was also proven that he kept intoxicating liquors in his store, and that numerous sales of such liquors had been made in the place. Some of these sales were made by the defendant in person, while others were made during his absence from the store by a clerk or salesman in his employ. Defendant was examined as a witness in his own behalf, and testified that he kept the liquors which were in his store with intent to sell the same strictly as medicine, and that all sales made by him in person were made on the representation by the purchasers that they desired the liquors for medicinal purposes only. The court instructed the jury that “if the owner or proprietor of any building or place in which intoxicating liquors are unlawfully kept or sold employs any clerk, servant, agent, or bar-tender, or other employe, in conducting or managing, or aiding to conduct or manage, the business of keeping or selling such intoxicating liquors, the owner or proprietor is equally liable for his own unlawful acts, and for the acts of his servant, clerk, agent, bar-tender, or other employe, in keeping or selling such liquors unlawfully.”

One proposition involved in this instruction is that if the owner or proprietor of the building or place is engaged in the business of selling intoxicating liquors contrary to law, or keeping them with intent to so sell them, he is criminally...