State v. Pierce
| Decision Date | 24 October 1884 |
| Citation | 21 N.W. 195,65 Iowa 85 |
| Parties | THE STATE v. PIERCE |
| Court | Iowa Supreme Court |
Appeal from Mitchell District Court.
THE defendant was convicted of the crime of nuisance, and sentenced to pay a fine and the costs of the prosecution, and from this judgment he appeals.
AFFIRMED.
L. M Ryce, for appellant.
Smith McPherson, Attorney-general, for the State.
I.
The offense of which defendant is accused is defined by section 4091 of the Code. The section is as follows: "Houses of ill-fame, * * * gamblinghouses, or houses where drunkenness quarreling, fighting, or breaches of the peace are carried on or permitted, to the disturbance of others, are nuisances. * * *" The indictment charges that defendant kept a house, and occupied the same as a brewery and saloon, where drunkenness, quarreling, fighting, and breaches of the peace were carried on, and by the defendant permitted to be carried on, to the disturbance of others. The district court instructed the jury, in effect, that defendant might be convicted on proof that he kept the place described in the indictment, and that drunkenness, quarreling, etc., were carried on there, or were permitted by him, to the disturbance of others. Counsel for defendant takes exceptions to this instruction. His position is that to render the place a nuisance, under the section quoted above, the drunkenness, etc., must be either carried on or permitted to be carried on there; that is, there must be a recurrence at the place of the acts enumerated in the section, or some of them, in order to make it a nuisance, and that it would not be given that character by a single transaction; but that, under the instructions, defendant might be convicted on proof that he permitted said acts to be done at his place on a single occasion. We think, however, that this position is not correct. The construction put upon the section by the district court gives to the language its natural and fair meaning. The people of a community may be greatly disturbed and annoyed by a single assemblage of drunken men in their midst, or by fighting and quarreling there, although it should occur but once. The object of the statute is to protect them from the disturbance and annoyance which would be occasioned by the occurrence of such events in their midst; and the evident intention of the legislature in enacting it was to provide for the punishment of men who should permit such acts to be done in buildings or places under their control, to the disturbance of others.
Another position urged by counsel is that, as the charge in the indictment is that defendant permitted the drunkenness, etc., to be carried on at his place, the state should have been required to prove the offense as thus charged, and that defendant ought not to be convicted on proof of a different state of facts. This position, stated in another form, is that the indictment charges that defendant permitted drunkenness, etc., to occur at his place on more than one occasion, whereas, under the instructions, he may be convicted on proof that he permitted it but once. But if the offense may be committed by permitting the occurrence of the acts on one occasion, we know of no reason why he should not be convicted on proof of a single transaction, although the indictment charges that he permitted them on various occasions. If the effect of the averment is, as counsel claims, to charge that defendant permitted drunkenness, etc., to occur at his place on more than one occasion, it necessarily includes what is covered by the instructions of the court, and more. But, as the facts stated in the instructions constitute the offense intended to be charged and actually charged in the indictment, whatever in addition to that is included in the averment is mere surplusage, and need not be proven.
II. The court instructed the jury that "a person is drunk in legal sense when he is so far under the influence of intoxicating liquor that his passions are visibly excited or his judgment impaired by the liquor." This definition is excepted to by defendant's counsel, but we think it is clearly correct, and it is in accordance with the definitions of drunkenness given in the authorities. See 1 Bouv. Law Dict., 510.
III. Defendant was a witness in his own behalf, and testified that he frequently sold beer to parties who drank it in the immediate vicinity of his place; also that he sold to parties...
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