Sanders v. State , 2 Iowa 230 ( 1855 )

"Woodward, J".

This cause arises under the act for the suppression of intemperance. All the questions of a constitutional character which are propounded in this cause, are embraced and considered in the case of Santo et al. v. The State, ante, 165. We will here notice those objections only which apply to this particular cause.

First. A motion was made to quash the information, because, whilst the liquor is charged as being in the house of the defendant, no affidavit of a sale at any time, is made, as is required by the act, before the warrant can issue. The act, section 9, directs that if the place to be searched be a dwelling-house in which any family resides, and in which no tavern, eating-house, grocery, or other place of public resort is kept, there shall be a more special affidavit, alleging that the liquor has been sold there. The complaint avers the liquors to be kept “ in a certain house or place, known or described as being the house occupied and kept by one Cephas Sanders,” on such a lot in Davenport. The counsel have devoted no words to these minor questions, and we shall be brief. The statute qualifies the proceeding, when against a “ dwelling-house,” or “ a house in which a family resides.” The complaint does not show the “house" to come within this description; nor is there a place showing it to be such. We do not think we are bound to hold the word “house” to be equivalent to “dwelling-house,” especially, when the statute uses the latter term. We could not do so, under section 2608 of the Code, relating to burglary, if a person were charged with breaking and entering the “house” of A.

Second. Cephas Sanders, who appeared in this cause, claiming the property and making defence, pleaded a former conviction in bar. That is, he pleaded as a bar to this complaint and prosecution, the complaint in the foregoing cause against himself, for keeping these liquors for sale. And the question is, whether Ms conviction for keeping them for sale, is a bar to this proceeding against the liquors themselves.

Let us look at the meaning of the act. First; it makes the keeping liquors for sale in the state, an offence. This is personal. Second; it makes liquors kept for sale in the state, a nuisance. Such a nuisance is to be abated by the forfeiture and destruction of the article. His conviction for keeping, does not answer the whole end and object of the law. To fine him for keeping for sale, and then leave the the thing still to be sold, would be an evasion of the intent of the law. That intent is, to remove the occasion of the evil. These two objects might, perhaps, be united in one proceeding; and if they were, it would not be. pretended that his conviction for keeping with intent to sell, would prevent the destruction of the thing. Why, then, should it be a bar, when the two objects are sought in separate proceedings ? The act does not seem to contemplate that the liquors must bo seized, in a proceeding against one for keeping it for sale, but evidently permits it to be pursued separately. We will not say that it requires it. This being correct, the conviction of the defendant for keeping with intent to sell, is not a bar to a prosecution against the liquors themselves as a nuisance, and for the abatement of the nuisance.

TMrd. The proposition embraced in the second point above, being correct, it follows that there was no error in the court refusing the two instructions asked upon this subject, as the basis of them is the assumption that the former conviction is a bar.

Fourth. The next error assigned is, the overruling the motion for a new trial, upon the ground that after the jury had retired, and before they returned into court with their verdict, two of the jurors separated from their fellows, and conversed with other persons about their verdict. The affidavit of James M. Cavanaugh, which is offered to sustain this motion, states, that after the jury retired to consider their verdict in the above cause, on Monday evening, October 1, 1855, and before they had returned their verdict into court, to wit: on the Tuesday-morning following, two of the jurors — Allen and Palmer — separated from their fellows, and were in the office of the affiant, and conversed in his presence about the case — and that afterward, they were present when the verdict was presented to the court, This bears the semblance of a serious matter. But the record shows that, on the day of the trial, the patties agreed that the jury should seal up their verdict, after agreeing upon it, and return it into court on the next morning; and that on the next morning, to wit, October 2, the jury returned a written and sealed verdict. The affidavit says, that the two jurors were separate from their fellows, on Tuesday morning; and we see no fault in this, under the foregoing arrangement. The charge is, that they conversed with other persons; but the affidavit says, they conversed in his (affiant’s) presence about the case. It does not show that they conversed with' another, nor that another person conversed with them. There is no error here.

Throughout these causes, the court has been solicitous not to avoid any question which might fairly be considered as presented; and it is possible that some have been considered which are not properly before us. It is to be regretted that the records are so often in an imperfect or irregular condition. This record shows us no affidavit of appeal; and papers are referred to as exhibits “A.” and “B.,” &c.,whilst no such papers are recognized in the case. With this remark, we pass certain other and lesser questions, believing that all the essential ones are considered.

The judgment of the District Court is affirmed.