Wrocklege v. State

Isbell, J. Was the indorsement on this indictment such as to substantially comply with the law ? The Code, section 2914, provides that an indictment must be presented by the foreman of the grand jury, in their presence, and filed by the clerk. In the case of Dixon v. The State, decided at the last term, the language of the indorsement was as follows: “ Presented to the District Court of Marion county, Iowa, in the presence of the grand jury, on the 11th day of February, 1853 — A. B. Miller, Clerk, D. C. M. C., Iowa.” This was held a sufficient compliance with the statute. See, also, Wau-kow-chaw-neek-kaw v. United States, Morris, 332. We are not disposed to disturb the ruling of the court in the case above cited. As to the second point raised by the assignment of errors, to wit: that no entry was made in the records at the time of the filing of the indictment, we have only to say, that nothing appears here that the party was under an arrest at the time the indictment was found; and if not, it would have been at least improper that such entry should appear in the record book, which is in its nature public. The in-dorsement on the indictment itself was sufficient record, and all that should appear, until after arrest. We are aware that there are several counter authorities on this point in the reports of the several states, and particularly of Tennessee. But, however this might be, in the absence of a statute, section 144 of our Code provides, that “ the records of the District Court consist of the original papers constituting the [171] causes adjudicated or pendiug in that court, and tbe books prescribed in tbe next section.” Again, section 1977 provides tbat “ all proper entries made by tbe clerk, and all papers pertaining to a cause, and filed therein (except subpoenas, depositions, and other papers which are used as mere evidence), are to be deemed parts of the record.” The first question that is raised by the demurrer, is, whether this prosecution is conducted in the name and by the authority of the state of Iowa, within the meaning of1 the constitution. The style of the indictment is as follows “The state of Iowa, Muscatine county. In the District Court for said county. May term, A. D. 1854. The grand jurors of the state of Iowa, within and for the body of the-county of Muscatine, duly elected, impanneled, charged and sworn, to inquire within and for the body of said county, in lehalf of said state of Iowar on their said oaths, present,” &c_ The constitution, article 5, section 6, provides that “the style of all process shall be, 1 The state of Iowa,’ and all prosecutions shall be conducted in the name and by the authority of the same.” It is contended that instead of “ in behalf of said state,” that a presentment should be expressed in the indictment to be “ in the name and ly the authority of the state of Iowa.” While we think the latter the more appropriate style, we are not prepared to say that it is the only phrase that may be used, or that it is essential to the validity of the indictment. The phrase placed under quotation in this section of the constitution, to wit, “ The state of Iowa,” constitutes the technical, authoritative name of the state.. See Harriman v. The State, 2 G. Greene, 270. It is in this name that all prosecutions must be commenced, and it is by the authority of the same, that they must be conducted. But we do not understand the constitution, by this, to mean that it must be expressed in each proceeding, in the conduct of a prosecution, that it is made in the name and ly the authority of the state of Iowa. We are aware of no judicial construction having been placed on this clause. There is at least no reported case, that throws any light upon it. Certainly, the legislature has not regarded the construction [172] claimed, bj plaintiff in error, as tbe true one. It has provided a form for a warrant of arrest, Code, section 2827; of commitment, section 2875; of information before a justice of the peace, section 3326 ; in all of which, if we assume the construction contended for, the expression should appear. Yet in none of these forms is it to be found. This legislative construction, it is true, is not controlling upon this court; and did we concur in the construction contended for, we should not hesitate so to pronounce; but understanding the constitution as we do, we see no cause for invalidating these forms, or reversing the judgment in the case, on account of any provision in that section. The indictment, which is substantially the same in all the courts, so far as is material to the determination of the case, is as follows: “ One glass of brandy, the same being intoxicating liquor, then and there did retail, with a view to its being drunk in a building, which the said Joseph Wrock-lege then and there kept and occujned as a shop, wherein said brandy was retailed.” As further grounds of demurrer, it is alleged that this indictment does not charge that the liquor was retailed by the glass or dram, or that said liquor was sold with a view to its being drunk on the premises ; or that it was drunk on the premises; or that it was sold. Section 925 of the Code, upon which this indictment is founded, is as follows: “ The retail of intoxicating liquors in the manner which is commonly denominated by the glass or by the dram, is hereby prohibited, and the sale of liquors in any quantity, with a view to their being drunk on or about the premises, is a selling by the dram, within the meaning of this section.” We see no defect in this indictment, in any of the particulars, on account of which these objections are taken. The word retail, as used in it, is equivalent to sell, and clearly charges a sale within the meaning of the act. The description of the premises, as the 11 building which the said Joseph Wrocklege then and there kept and occupied as a shop, wherein said brandy was retailed,” is clearly equivalent to “ on or about the premises.” It is totally immaterial whether the liquor was, in fact, [173] drunk on or about the premises, if tbe selling was with the view that they should be so drunk ; and if sold with, tbat view, it is immaterial in wbat quantity sold, whether by the glass or otherwise. It is further objected, that this indictment is not signed by the prosecuting attorney. It is signed “ Edw. H. Thayer, Pros. Atty. pro term, for Muscatine county, Iowa.” Nothing appears to us that he was not so. At least, we must so regard him, on demurrer. The first instruction asked was properly refused. And so far as the record discloses, the third may also have been. There is nothing apparent in the record, tending to show that it is not a mere abstract proposition. In other words, there is nothing apparent that there was any evidence, or state of case existing before the court, to make this instruction pertinent to the case. It is further objected, that the judgment in this case is not a separate'judgment for each offence. We do not so regard it; but, on the contrary, we think it rendered in such a manner as to substantially comply with the act. It is, again, contended that the oath of the jurors is not such as to justify the conviction. And in support of this position, the case of Dixon v. State, determined at the last term, and Harriman v. The State, 2 G. Greene, 285, are cited. Without disturbing the rulings in those cases, we arrive at a different conclusion. The former of those cases is clearly distinguishable from the one at bar, in this: the oath disclosed by the records in that case, as appears by the papers on file, was simply “ the truth to speak,” without more. The latter was an indictment for murder, under the laws of 1843. The law, at that time, expressly laid down the form of oath to be administered to jurors in a criminal case. And it is upon that reason that Greene, J., in delivering the opinion of the court, bases the ruling. He says, after reciting the form of the oath, “ this is the oath which, under the requirements of our statute, should have been administered to the jury. Had their oath contained the substance of this in any other form, we should, after verdict, have regarded it as sufficient. Or had the record remained silent upon [174] this point, we should have presumed they bad taken tbe. legal oatb.” Tbe case is different now. Our law prescribes •no form of oatb, but only declares, section 2971, “ Tbe jury •consists of twelve men, accepted and sworn to try tbe issue.” In this case, tbe record shows that the jury, after being im* panneled, were duly sworn tbe truth to speak upon tbe issue joined. "Without now discussing bow far irregularities will be deemed waived in tbe trial of misdemeanors, in case no •objection is taken at tbe time, we conclude that tbe oatb here appearing to be- administered, substantially complied with tbe requirements of tbe law; and, at least, that we must here, without objections having been taken in tbe •court below, so consider it; and that this, like too many of the questions raised in this case, is of that technical character which, by section 8097 of tbe Code, we are not to regard; Judgment affirmed."