Hintermeister v. State, 1 Iowa 101

Hintermeister v. State

1 Iowa 101 | Iowa | 1855

Weight, C. J.

Tbe plaintiff in error relies- upon three, grounds to reverse tbis case. First, tbe overruling tbe demurrer. We have examined tbe information, and conclude that tbis demurrer- was very properly overruled. Tbe information charges, that tbe sale was made on tbe 12th day of March, 1854, at tbe county of Muscatine,, in a certain-frame bouse, .situate on a part of lot 6, block 10, in tbe city ©f Muscatine ; that tbe bouse was at tbe time of tbe sale, in tbe possession and occupancy of said Hintermeister; and that tbe sale was made by him, with intent: on tbe part of Hintermeister, that tbe liquor so sold should be drunk on tbe said premises. Tbe particular part of said lot is very *105minutely described. So, tbat aside from tbe objection, that tbe facts charged in tbe information did not constitute tbe building a nuisance, we tbink tbe information was, as- to all tbe other causes assigned, free from defects. Indeed, we may say, it is exceedingly well drawn, charging tbe offence with great clearness and precision. So far as relates to tbe charging tbe building as a nuisance, we tbink tbe information is, in fact, against Hintermeister, and tbat tbe premises and building are only described as tbe place where be sold tbe prohibited liquor. So much of tbe order or judgment on tbe petition and demurrer, as directed the nuisance to be abated, and assessed a fine against tbe said building, may have been incorrect. In tbe District Court, however, this-error was corrected, and it is from that judgment the defendant brings bis writ of error, and not tbat of tbe justice. By the Code, section 3361, tbe District Court, on bearing these-appeals, must render such judgment as tbe magistrate should have rendered. In this respect, tbe finding and order of tbe District Court was such as tbe justice should have rendered, and we see no error in overruling tbe demurrer on tbe other points made.

Tbe next error assigned, is in refusing tbe change of fenue. Without referring to tbe statement of tbe justice, that'tbe application was made after tbe trial commenced, or the waiver of the prosecuting attorney of any objection to such change of venue, it is sufficient to state, tbat this ruling of tbe justice does not appear, to have been urged before tbe District Court. Tbe demurrer was overruled after argument, but there is no reference to tbe application for a change of venue. We cannot consider any error of tbe justice, tbat was not passed upon by tbe District Court. Eon aught we know, this ruling of tbe justice was waived in the court below.

The last error assigned is, that the District Court refused tbe defendant a new trial, or trial on tbe merits, on such appeal As sustaining this argument, we are referred to the case of Kuner v. The State, decided at the last term of this. Court. Without intimating an opinion as to tbe correctness. *106or incorrectness of tbat decision, we think that this case is distinguishable from that in two essential particulars. In that case, defendant in his affidavit stated that injustice had been done him, for the reason that the justice’s judgment was against evidence. In this, there is no such averment, but the injustice is alleged to consist in overruling the demurrer, refusing the change of venue, and declaring the house a nuisance. There was no averment upon which he would have a right to a new trial, even under the case referred to by defendant. But in the case of Kuner, it. also appears, that the District Court refused to hear and try the allegations of fact alleged in the appeal. In this case, the record does not show any such request or application of the defendant, to be so heard, or that the court refused to try the question of his guilt. On the contrary, it would appear that after the demurrer was overruled, no further objection was made, and judgment was thereupon rendered.

¥e are unable, therefore, to see any such error or defect in this record, affecting the substantial rights of the defendant, as to justify the reversal of the judgment. It is only such error and defects as do affect substantial rights, that we can regard, under the Code. See sections 3099 and 3361. That is the law, and we do most cheerfully abide by both its letter and spirit.

Judgment affirmed.