State v. Waltz

• Decision Date: 07 June 1888
• Citation: 74 Iowa 610,38 N.W. 494
• Parties: STATE v. WALTZ.
• Court: Iowa Supreme Court

74 Iowa 610

38 N.W. 494

STATE

v.WALTZ.

Supreme Court of Iowa.

June 7, 1888.

Appeal from district court, Muscatine county; W. F. BRANNAN, Judge.

F. J. Waltz was indicted for the offense of keeping a nuisance by maintaining a saloon for the unlawful sale of intoxicating liquors. A demurrer to the indictment was sustained, and defendant was discharged. The state appealed.A. J. Baker, Atty. Gen., for the State.

J. J. Russell, for appellee.

BECK, J.

1. The parts of the indictment necessary to be set out here are in the following language: “The grand jury of the county of Muscatine, in the name and by the authority of the state of Iowa, accuse F. J. Waltz of the crime of nuisance, committed as follows: The said F. J. Waltz, on the 10th day of November, A. D. 1886, in the county aforesaid, willfully and unlawfully did use a certain building, known as a ‘saloon,’ for the purpose of selling therein, and therein did sell, intoxicating liquor of the kind prohibited by law, to-wit, whisky, brandy, rum, gin, ale, wine, and beer, to divers persons, and did then and there, by the means aforesaid, keep and maintain a public and common nuisance, to the manifest corruption of good morals, contrary to the provisions of the Code of Iowa in such cases made and provided, and against the peace and dignity of the state of Iowa.” The demurrer sustained is in this language: “Comes now the defendant in the above entitled case, and demurs to the indictment herein filed, for the reason and on the ground that defendant is charged in said indictment with unlawfully using a certain building for the purpose of selling therein intoxicating liquors, and thereby keeping and maintaining a common and public nuisance; and under the law upon which said indictment was founded and based, the proceeding is one in which it is contemplated and intended to affect the certain premises in which said alleged nuisance is said to be maintained; and nowhere in said indictment is there to be found a correct description of said premises where said nuisance is said to exist, nor is there any description whatever of said premises in said indictment.” We are required to determine whether an indictment charging the crime of nuisance by keeping a place for the unlawful sale of intoxicating liquors is good in the absence of averments particularly describing the place, house, or building in which the nuisance is maintained. It appears to be the settled rule of the books that such an indictment is sufficient, unless the locality in which the act causing or creating the nuisance is a necessary ingredient of the crime, in that the act would not cause the nuisance if done elsewhere, or is essential to the identity of the offense, or the nuisance is to be abated upon conviction of the accused. 2 Bish. Crim. Proc. §§ 111, 866, and notes; Whart. Crim. Pl. § 155; 2 Archb. Crim. Pr. & Pl. 980; 2 Whart. Prec. Ind. 719.

2. The court has held that indictments for nuisances committed by keeping places for the sale of intoxicating liquors are good without averments precisely describing the locus of the offense. State v. Kreig, 13 Iowa, 462;State v. Schilling, 14 Iowa, 455;State v. Freeman, 27 Iowa, 333. The indictments in these cases were all found under the statute in force when the...