State v. Schilling

14 Iowa 455

• Court: Supreme Court of Iowa
• Decided: January 12, 1863
• Status: Published

Opinion

Wright, J.

I. The grand jury was properly organized and had authority to present this indictment. See The State v. Delong, 12 Iowa, 453. The two cases in this respect are in principle precisely similar.

II. Defendants were indicted for keeping a nuisance. That the offense was cognizable by a grand jury, see The State v. McGrew, 11 Iowa, 112; Same v. Collins, Id., 141.

III. That the place where the unlawful sale of the liquors was carried on was described with sufficient particularity and definiteness, see The State v. Kreig, 13 Iowa, 462. In this respect the two indictments are the same.

IY. An allegation, under section 1561 of the Eevision of 1860, that a certain building was used by defendants as “a place for the sale of intoxicating liquors, and that they did then and there keep intoxicating liquors for sale in said building, with intent, &c., is sufficient, without the further averment that said building was under their control. And, therefore, after such statement of the facts constituting the offense, an averment that the same was under “ his control ” without naming which, may be rejected as surplusage and will not vitiate. And especially so, when the testimony abundantly and conclusively shows that the house was kept and controlled by one of the defendants, who alone was convicted. The common understanding, from the language used, shows that the pleader intended to charge th§,t both defendants kept and used the building for the prohibited purpose, and this is sufficient. Eevision of 1860, §§ 4650, 4659.

Y. The claimed defect upon the ground that one count of the indictment concludes “to the common nuisance of all the people of said county, unlawfully,” is sufficiently answered by reference to § 4660 of the Eevision of 1860.

YI. It is not necessary that the indictment should show that the nuisance was continued up to or existed at the time the same was found. If the offense was committed about the time laid and within three years before the finding of the indictment, it is sufficient. In this case, the testimony shows that the liquors were kept and sold within a few days, or weeks, at most, before the presentment was made.

VIL A witness was introduced by the prosecution and objected to by defendants’ counsel, upon the ground that “ it does not appear, as he alleges, that he was examined before the grand jury, and his testimony reduced to writingj or that the minutes of the same were presented with the indictment to- the Court.” That the witness’ name was indorsed upon the indictment, is not controverted. And the record contains what purports to be the minutes of his testimony, taken by the clerk of the Grand Jury and presented with the indictment to the cause. For what reason these minutes should not be received as genuine, we are not advised. There was no pretense that they were surreptitiously or otherwise improperly in the record, and we must presume that the Court below, taking judicial notice of its • own records, had sufficient evidence of their verity, and held properly that the general allegation of counsel impeaching their genuineness was -not sustained.

VIII. A witness was asked this question : “ What have you seen by the way of intoxicating liquors being sold between the 1st day of July, 1860, to the 15th day of April, 1861, in that building?” This was objected to as leading, and the objection overruled. While the interrogatory is not framed in the most apt language, it is certainly not subject to the objection stated. It directs the attention of the witness, it is true, to a time, and this is not improper. But in no just sense can it be said to suggest the desired answer to the mind of the witness.

IX. Many objections were made to certain questions asked witnesses, and the answers thereto. None of them, however, demand, at our hands, from the views above expressed, specific discussion.

Affirmed.