65 Iowa 382 | Iowa | 1884
The appellant sought to effect a release from the custody of the defendant, Rosencrans, as sheriff of Cerro Gordo county. The record shows that he had been brought before one II. II. Cummings, a justice of the peace, on a charge of maintaining a nuisance in the use made of a certain room, by keeping whisky, wine and beer, and other intoxicating liquors, therein, with intent to sell the same in violation of law. As to what order the magistrate made, the record is silent; but both parties have treated the case as if the order was that Hart be held to answer to the charge against him. A bail-bond was given by him, and afterwards the surety upon the bail-bond surrendered him. The defendant, in his answer and return, sets up such bail-bond and surrender in his defense. The illegality of the restraint is said to consist in the insufficiency of the evidence to justify the magistrate’s order. It is not denied that the evidence would be sufficient, but for the fact, as is alleged, that the l$w under which the charge was made is unconstitutional, so far as it applies to beer which wras the property of the person charged, and on hand in his place of business, before the law took effect; and it is said that the evidence shows only that the appellant was keeping beer with intent to sell the same, and that all the beer thus kept by him was his property, and was in his place of business, to-wit, in the room complained
Tbe evidence upon wbicb the applicant was held to answer not being properly brought before tbe judge, be did not, we think, err in refusing to discharge him.
Affirmed.