State v. Dean

| Iowa | Dec 5, 1876

Day, J.

i. criminal ment: intoxiuoí-s!'6 lul We think the court erred in sustaining the demurrer. The defendants are accused of the crime of keeping a nuisance. This is the offense charged, and as to that the indictment is direct and certain as required by section 4298. What follows relates to the particular circumstances of the offense charged. The defendants committed the crime of nuisance by continuing and controlling a building for the purpose of selling intoxicating liquors therein in violation of law, and by selling in said building intoxicating liquors in violation of law, and permitting gambling, fighting, drunkenness, and breaches of the peace therein contrary to law. Any one of these acts may constitute a nuisance; but the three, taken together, can do no more. It is as though a party should inflict a mortal wound with a pistol, and then another with a knife, and then should strangle his vietim to death.

Section 4091 of the Code provides that gambling houses, or houses where drunkenness, gambling, fighting or breaches of the peace are carried on or permitted, to the disturbance of others, are nuisances. Section 4092 of the Code provides that whoever is convicted of continuing a public nuisance as described in this chapter, shall be punished by a fine not exceeding one thousand dollars.

The prohibitory liquor law, section 1543, provides that whoever shall erect, establish, continue or use any building for any of the purposes prohibited in certain sections referred to shall be deemed guilty of a nuisance, and may be prosecuted and punished accordingly in the manner provided by law. It has been held that this refers to section 4093, which is the same as section 4412 of the Bevision. State v. McGrew, 11 Iowa, 112" court="Iowa" date_filed="1860-10-06" href="https://app.midpage.ai/document/state-v-mcgrew-7092114?utm_source=webapp" opinion_id="7092114">11 Iowa, 112. The nuisance, therefore, whether committed by keeping a house for the .unlawful sale of intoxicating liquors, or- by keeping a house where drunkenness, quarreling, fighting etc. are carried on or permitted, is punished in the same manner and under the same section.

Suppose a defendant should be convicted of a nuisance because at a particular time he controlled a certain building for the purpose of selling therein intoxicating liquors in violation of law: could he afterward be made amenable to the law for keeping a nuisance at the same time, in the same building, by permitting drunkenness, quarreling, etc. %. It seems to us he could not. And yet he could-if the two acts constitute wholly separate and distinct offenses. For a conviction of one offense could not be pleaded in bar of a prosecution for an entirely different and distinct offense.

It is true the indictment does not charge that the quarreling, drunkenness, etc., were carried on or permitted to the disturbance of others. The failure to 'employ the italicised words constitutes a failure to charge a nuisance committed in the particular manner referred to in section 4091. But this does not render the indictment vulnerable to a demurrer on the ground of duplicity. It is quite apparent that it ivas not the purpose of the indictment to charge the distinct offense of keeping a house resorted to for the purpose of gambling, as prohibited in section 4026.

Reversed.