| Iowa | Jul 1, 1857
The plaintiff in error, claims that the District Court should have reversed the judgment of the justice for the various errors assigned in his affidavit for appeal, and upon the case made by the return of the justice and the entire record. We therefore direct our attention to said affidavit, and so much of the proceedings before the justice as bear upon the question raised. And first, it is urged that the justice erred in overruling the motion to quash the warrant of arrest. So far, we are unable to see any ground whatever for this objection, so far as it relates to the warrant itself. It follows, substantially, and, indeed, almost literally, the form given in the Code, (§ 2827,) and is, therefore, legally sufficient. It is said, however, that it should have been quashed, because there was no information filed before the justice upon which said warrant could regularly issue. The determination of this question brings us to the consideration of said information, and we are thus brought to the inquiry, whether the demurrer filed before the justice to said information, was properly overruled.
And first, under this head, it is insisted that the venue is not sufficiently laid in said information. The defendant, by the information, is charged with selling liquor to six different persons. He was acquitted upon all the counts, except one, and it therefore only becomes material to inquire whether, in that count, the venue is well laid. The caption and part of the first count is as follows:
11 State of Iowa v. John Devine. Before W. C. Smith, Justice of the Peace, in and for the county of Benton. The defendant is accused of the crime of selling intoxicating liquors, contrary to law. 1st. For that, on the 28th day of January, A. D. 1857, the said defendant, by himself, for himself, in Yinton county and state aforesaid,” &c. In the sixth count, (the one upon which he was convicted,) it is averred, “ that said defendant, on the 29th day of January, A. D. 1857, at the place aforesaid,” did sell, &c. That this information lays the venue with sufficient certainty, we entertain no doubt. It follows the statute in every essential requisite in this respect, and more than this is not
In the second place, it is insisted that the information was not subscribed and sworn to as required by the Code, § 3323. The exact point here made, it is somewhat difficult to understand. It appears that the complaint or information was made and presented by one Pauly. After charging the defendant with having sold liquor to the several persons therein named, we find at the close thereof, the following affidavit:
“ State of Iowa, Benton County. I, James L. Pauly, being duly sworn, depose and say, that I believe the matters and things set forth in the above and foregoing information, are true.
James L. Pauly.
“ Subscribed and sworn to before me, this 30th day of January, A. D. 1857.
Wm. C. Smith, J. P.”
As we understand the objection, it' is that the informant should have subscribed his name at the close of the information, and not to what is termed the affidavit. The affidavit, however, is a part of the information, and when the complaining party affixes his signature to it, he subscribes to the information within the full meaning of the law.
The next objection made is, that the information does not state whether the defendant sold the liquor “ directly or indirectly, or whether he did, on any pretence, or by any device, sell, or in consideration of the purchase of any property, give to the persons named the said intoxicating liquors.” The charge in the sixth count of the information, as we have already seen, is that the said defendant, by himself, did, for himself, sell intoxicating liquors, viz: whiskey, fo &c. The language of the law is, that “ if any person by bimsp.lf, his clerk, servant or agent, shall, for himself or any one else, directly or indirectly, or on any pretence, or by any device, sell, or in consideration of the purchase of any other property, give to any other person any intoxicating
We are next led to inquire whether the justice erred in refusing a certain question, propounded by the defendant, to be answered by the person to whom the information, in the sixth count thereof, charges the liquor to have been sold. It seems that he was asked the following question on his cross-examination: “ State whether you went to the defendant, when you bought the bottle of liquor to which you testify in your examination in chief, for the purpose of procuring evidence against him for selling intoxicating liquor,” which question was objected to by the attorney for the state, and the objection sustained. It is not claimed that the intention with which the witness bought the liquor, whether good or bad, would tend to change the legal character of the act of selling. But it is insisted that the question was proper, on the cross-examination, for the purpose of showing the feeling of the witness and the motives influencing his testimony. We, therefore, treat the inquiry as relating to a collateral fact, made with a view to discredit the witness. Under some circumstances, we can readily see that such a question would be pertinent. If it appeared,
Finally, it is urged that the testimony was not sufficient to justify the verdict. This testimony is spread out in the record, and without here setting it out, it is sufficient to say that we think the jury Vas fully justified in finding as it did. And, we may go further, and say that to our minds, it is somewhat difficult to understand why defendant, under the testimony, was not proved guilty under more than one count.
Judgment affirmed.