State v. Shank

• Decision Date: 22 January 1890
• Citation: 44 N.W. 241,79 Iowa 47
• Parties: STATE v. SHANK.
• Court: Iowa Supreme Court

79 Iowa 47

44 N.W. 241

STATE

v.SHANK.

Supreme Court of Iowa.

Jan. 22, 1890.

Appeal from district court, Montgomery county; N. E. DEEMER, Judge.

Defendant was indicted and tried for the crime of nuisance, and found guilty. He was adjudged to pay a fine of $350, an attorney's fee, and costs. From that judgment he appeals.C. E. Richards and S. McPherson, for appellant.

John Y. Stone, Atty. Gen., and R. W. Beeson, Co. Atty., for the State.

ROBINSON, J.

The indictment was found on the 21st day of June, 1887, and charged defendant with having committed the crime in question by unlawfully keeping for sale and selling intoxicating liquors in the city of Red Oak. During the time covered by the indictment defendant was a registered pharmacist. This cause was submitted in this court on a former appeal. See 74 Iowa, 649, 38 N. W. Rep. 523.

1. After the jury was duly impaneled and sworn on the last trial, the county attorney stated to the court that the original indictment was lost, and moved that a copy thereof be substituted therefor. The motion was resisted by defendant, but sustained by the court after a showing that the original was lost. Appellant contends that the substitution was notin fact made, but the transcript shows clearly that it was. The record of the order made by the court is as follows: “And it appearing to the court that the original indictment in this case has been lost, the county attorney moves to substitute a copy thereof, which motion is supported by oral testimony, and motion submitted; and upon due consideration it is ordered by the court that said motion be sustained, and that the copy of the indictment marked ‘Exhibit A’ by the short-hand reporter is substituted as and for the original indictment found herein.” We think the orders of substitution and identification were sufficient.

2. It is objected by appellant that the jury were sworn to try the case upon the indictment as returned by the grand jury, and not upon a copy substituted therefor; and, that the jury having been sworn before the copy was substituted, they were impaneled and sworn when no indictment was in existence, and when the court had no jurisdiction to impanel a jury. The objection made is technical, and does not go to the merits of the case. It was said in State v. Rivers, 58 Iowa, 107, 12 N. W. Rep. 117, that the court possesses an inherent power to preserve and protect its jurisdiction when it has once attached, and that it is the modern practice to disregard unimportant technicalities, not vital or material to the rights of the parties. In contemplation of the law, the copy of the indictment substituted for the original is, in effect, the original, and is to be so treated. The substitution relates back to the presentment by the grand jury, and may be made whenever it is discovered that the original is lost. It was not necessary for defendant to replead after it was made. The issues were not in any manner changed by it, and it must be presumed that the jury were sworn to try those issues. We are of the opinion that the objection is not well founded.

3. Appellant insists that the evidence to show that the original indictment was lost was not sufficient. We have read the evidence on that point as it appears in the abstracts and in the transcript, and conclude that it fully sustains the ruling of the court.

4. The second paragraph of the charge to the jury is as follows: “The defendant in the first instance is presumed to be innocent, and this presumption continues until he is proven guilty, beyond all reasonable doubt. The plea of not guilty casts upon the state the burden of showing, by clear and satisfactory proof, either that since the 8th day of April, 1886, and prior to the 21st day of June, 1887, the defendant in this county kept, managed, or controlled the lower story and cellar of the building described in the indictment, for the purpose of selling intoxicating liquors, or that, within the time named and at the place above stated, the defendant managed, kept, or controlled the said lower story and cellar of the building aforesaid, for the purpose of keeping for sale therein intoxicating liquors, and, if either of these matters are shown beyond all reasonable doubt, then the defendant should be convicted; but if neither of them is shown by that quantity of the testimony, then the defendant should be acquitted.” It is insisted by appellant that the instruction is erroneous, in that it ignores the fact that, to constitute the crime charged, the existence of intoxicating liquors in the place described was asserted. There can be no question that the claim is well founded. See State v. Tierney, 74 Iowa, 238, 37 N. W. Rep. 176, and cases therein cited. Counsel for the state concede the error, but contend that it was not prejudicial for two reasons, to-wit: (1) The fact that intoxicating liquors were kept in the place described was clearly shown, and not questioned; (2) the error was cured by other parts of the charge. No issue was made on the trial as to the fact that defendant kept intoxicating liquors in the place described in the indictment. Officers testified, without...