State v. Schuler

• Decision Date: 04 October 1899
• Citation: 80 N.W. 213,109 Iowa 111
• Parties: STATE v. SCHULER. STATE v. MIKOTA.t
• Court: Iowa Supreme Court

109 Iowa 111

80 N.W. 213

STATE

v.SCHULER.

STATE

v.MIKOTA.

Supreme Court of Iowa.

Oct. 4, 1899.

Appeal from district court, Howard county; A. N. Hobson, Judge.

These cases present the same questions, and may be disposed of in a single opinion.Defendants are charged with keeping liquor nuisances.They each demurred to the indictments, and, upon the overruling of their demurrers, pleaded guilty to the offense charged.Thereafter they filed motions in arrest of judgment, which were overruled, and judgments were entered against them, from which they appeal.Reversed.H. T. and C. W. Reed, for appellant Mikota.

P. F. McHugh, for appellant Schuler.

Milton Remley, Atty. Gen., and Chas. A. Van Vleck, for the State.

DEEMER, J.

The indictments each contain two counts, one charging the defendant with keeping a building and erection or place in Howard county in which he sold, or kept with intent to sell, intoxicating liquors contrary to law, and the other with keeping a building or place in the village of Protivin, in Howard county, in which he sold, or kept with intent to sell, intoxicating liquors contrary to law.There is no statement of an intent to charge but a single offense.The demurrer was on the ground that the indictment charged two separate offenses, and that it was indefinite and uncertain as to the offense charged and the particular circumstances thereof.The plea was of guilty of the offense charged.The motion in arrest of judgment, among other things, charges that on the whole record no legal judgment can be rendered, because of the condition of the indictment.The first count of the indictment charged a complete offense (State v. Dean, 44 Iowa, 648;State v. Waltz, 74 Iowa, 610, 38 N. W. 494, and cases cited); that is to say, it was not necessary to more particularly describe the locus.The second charges the keeping of a nuisance in a particular building that is situate in the town of Protivin, in Howard county.Having thus described the building, it was incumbent on the state to prove the keeping of that particular nuisance.State v. Crogan, 8 Iowa, 523;State v. Hesner, 55 Iowa, 494, 8 N. W. 329;State v. Newland, 7 Iowa, 242.Indeed, a particular description of the building is necessary when abatement of the nuisance is sought.State v. Waltz, 74 Iowa, 610, 38 N. W. 494.Such an allegation is not surplusage, and must be proven as alleged.See authorities heretofore cited.Defendants might have been convicted on the first count of the indictments upon proof of keeping a nuisance in any place within the limits of Howard county.It seems quite clear that it was not intended to charge but a single offense.The indictment...