State v. Mulhern

• Decision Date: 06 March 1906
• Citation: 130 Iowa 46,106 N.W. 267
• Parties: STATE v. MULHERN (TWO CASES).
• Court: Iowa Supreme Court

130 Iowa 46

106 N.W. 267

STATE

v.MULHERN (TWO CASES).

Supreme Court of Iowa.

March 6, 1906.

Appeal from District Court, Madison County; J. H. Applegate, Judge.

The defendant was indicted on December 10, 1904, charged with maintaining an intoxicating liquor nuisance. On April 21, 1905, the state commenced an action in equity to enjoin defendant from maintaining an intoxicating liquor nuisance at the place in said county described in the indictment. The case under the indictment was tried to a jury, resulting in a verdict of guilty and judgment for a fine and costs. By agreement the case for an injunction was submitted to the court upon the evidence introduced upon the case under the indictment, and there was a decree in favor of the state. The defendant has appealed in both cases, and they are submitted together in this court. Affirmed.Steele & Robbins and Wilkinson, Smith & Wilkinson, for appellant.

Chas. W. Mullen, Atty. Gen., and Lawrence De Graff, Asst. Atty. Gen., and W. S. Cooper, for the State.

BISHOP, J.

1. Before pleading in the criminal case, the defendant filed a motion to set aside the indictment on the ground that certain documents used by the grand jury as evidence upon which to base the indictment were not attached to or returned with the indictment. It appears, from testimony introduce upon the motion, that the county attorney procured from the office of the county auditor certain written requests purporting to have been made to the defendant, a druggist and permit holder, for the sale of intoxicating liquor, and which requests had been filed by defendant with the county auditor in compliance with Code, § 2397; that such requests were used by the county attorney to aid him in examining witnesses brought before the grand jury, and not otherwise. The written requests were not attached to or returned with the indictment. The motion was overruled, and we think rightly so. The statute goes no farther than to require that the names of the witnesses before the grand jury shall be indorsed on the indictment, and that with the indictment there shall be presented to the court the minutes of the evidence of such witnesses. Code, § 5276. Here the requests were not even used as evidence; but, had they been, it was not necessary under the statute to return them with the indictment. State v. Mullenhoff, 74 Iowa, 271, 37 N. W. 329;State v. Hurd, 101 Iowa, 391, 70 N. W. 613;State v. Boomer, 103 Iowa, 106, 72 N. W. 424.

2. There was evidence showing that sales of intoxicating liquor had been made by defendant to a person under 21 years of age; and, as bearing on the subject, the court instructed the jury that a sale made to a person not...