State v. Collins

11 Iowa 141

• Court: Supreme Court of Iowa
• Decided: October 6, 1860
• Status: Published

Opinion

Baldwin, J.

The defendant was indicted under section 8 of chapter 45 of the act of the legislature for the year 1855, entitled, “An Act for the suppression of intemperance.”

The defendant, in the District Court, demurred to the indictment for the reason that there was no penalty fixed by said act for the punishment of a person found guilty under the provisions of said section.

This question has been determined by this court, in the case of The State of Iowa v. McGrew, ante, in which it was held that violations of the provisions of section 8 of said act are to be prosecuted and punished in the same manner, as though such acts were declared a nuisance by section 2759 of the Code. It is further claimed by appellant, in his argument in this cause, that the demurrer should have been sustained, for the reason that the indictment does not charge that the liquors were kept by defendant with the intent to sell the same in violation of law. The indictment charges the defendant with “keeping certain intoxicating liquors with intent to sell the same therein, in said State, to the common nuisance,” &c. We think that the keeping of liquors, with the intent to sell the same, is the offense intended to be punished, and that the indictment is good if it contains this allegation, without adding that it was so kept in violation of law. Section 8 refers to the three preceding sections, and declares, in case of a violation of said sections, the building or erection of whatever kind, or the keeping with intent to sell, &c., a nuisance.

The keeping of intoxicating liquors for sale, within the State, is unlawful of itself, unless the party thus keeping and offering to sell, is specially authorized to sell the same. And such authority need not be negatived in the indictment. State of Iowa v. Beneke, 9 Iowa, 203.

Judgment affirmed.