State v. Schuler

Oct 4, 1899

Reporters:: ,
Before:: Deemer

Deemer, J.

Tbе indictments ©acb contain two counts, one charging tbe defendant with keeping a building and erection or place in Howаrd county in which he sold, or kept with intent to sell, intoxicating liquors contrary to law, and the other with keeping a building or place in thе village 1 lof Protivin, in Howard county, in which he sold, or kept with intent to’ sell, intoxicating liquors contrary to law. There is no statement of ‘an intent to charge but a single offense. The demurrer was on the ground that the indictment charged two separate offenses, аnd that it was indefinite and uncertain as to the offense ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍chargеd and the particular circumstances thereof. The plеa was guilty of the offense charged. The motion in arrest of judgment, among other things, charges that on the whole record no lеgal judgment can he rendered, because of the condition of the indictment. The first count of the indictment charged a cоmplete offense (State v. Dean, 44 Iowa, 648; State v. Waltz, 74 Iowa, 610, and cases cited); that is to say, it was not necessary 2 to more particularly describe thе locus. The second charges the keeping of a nuisance in a particular building that is situate in the town of Protivin, in Howard county. Having thus described the building, it was incumbent on the state to prove the keeping of that particular nuisance. State v. Crogan, 8 Iowa, 523; State v. Hesner, 55 Iowa, 494; State v. Newland, 7 Iowa, 242. Indeed, a particular description of the building is ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍necessary when abatement of the nuisance is sought. State v. Waltz, 74 Iowa, 610. Such an allegation is not surplusage, and must be proven as alleged. See authorities heretofore cited. Defendants 3 might have been convicted оn the first count of the indictment upon proof of keeping а nuisance in any place within the limits of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Howard county. It seems quite clear that it was not intended to charge but a single offense. The indictment does not so state, *113and mere was no necessity for tbe second count, unless it was for tie purpose of сreating a foundation for the abatement of tie nuisancе. If that was the purpose,’ then there was ño necessity for tiе first count, unless the state expected to prove the existence of another‘nuisance. The case does not differ essentially from State v. Chapman, 94 Iowa, 67, wherein it is held that an indictment charging the keeping of a nuisance in “a building, erection, place, and rаilroad car” was bad for duplicity. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍In any event, the indictment is. not direct and certain, as required by section 5282 of the Code. The demurrers should have been sustained.

As the indictment charged two offt nsеs, and the plea is, “Guilty of the offense charged,” the judgment has nоt that certainty which the law requires for the protection оf the 4 defendant against future prosecutions. No one can tell from this record whether defendants were convicted ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of the crime of keeping a nuisance at the village of Prоtivin, or at some other place in Howard county. Com. v. Haskins, 128 Mass. 60; State v. Karlowski, 142 Mo. Sup. 463 (44 S. W. Rep. 244). That a judgmеnt in a criminal case should be so direct and certain as thаt it may constitute a bar to a further prosecution for the sаme offense is so elementary that a citation of authorities is not needed to enforce the proposition. Pоr the errors pointed out, the judgments are each reversed.