State v. Malling

Wright, J. I. We are not prepared to say that the court below erred in overruling the application of defendant for a change of venue. In the first place if we assume that all the evidence produced on the hearing of said application is before us, we are by no means prepared to conclude that the court did not, in the language of the law, decide “ according to the very right of the matter.” (Laws of 1857, Oh. 227, section 2.) But in the second place, we are not informed by bill of exceptions or otherwise, that all the evidence produced is before us, and can not, therefore, tell whether the discretion reposed was or was not abused. II. Defendant was charged before a justice of the peace, with selling intoxicating liquor. The information charges five distinct offenses, in as many different counts; in selling [241] liquor, on different days, to as many different persons. Each count charges the sale to a person named and to divers other persons to the informant unknown. Before the justice, the defendant was found “ guilty as charged in the information,” and fined twenty dollars. He appealed to the District Court and was found guilty on four of the counts, and fined twenty dollars for each offense. On the trial he asked the court to charge the jury that, to find him guilty as charged in each count, they must find that he sold to the person and at the time as therein charged. This instruction was refused, and this refusal is now assigned as error. In. this there was no error. The instruction confines the prosecution to the proof of time, or the day, of the commission of the offense, in a - manner not warranted by the authorities. If the instruction was not otherwise objectionable, this feature justified its refusal. III. That the form of judgment was not improper, -we refer to Wrockledge v. The State, 1 Iowa, 167. IY. It is insisted that, as the defendant before the justice was found guilty generally, without specifying upon which count, and fined but twenty dollars, it was not competent for the District Court to try and convict him for more than one offense. If it appeared that he was acquitted before the justice of any one or more of the charges, it would be true that upon his appeal from the conviction had against him upon-others, he could not be tried except upon those from which he appealed. It was the duty of'the justice, under the law, to have examined into and passed upon defendant’s guilt or innocence as to each one of the charges, and to punish him, if found guilty, upon each count, in the same manner as if he had been charged in separate informations. Instead of doing this, however, it seems there was a general finding of guilty and a fine entered up as for one general offense. And if in this respect the magistrate failed to discharge his legal duty, it was still competent for the District Court, upon [242] the appeal, to execute the law and to convict the defendant, if the proof so warranted, for each violation. The appeal brought up the case for trial as upon an issue of fact under - an indictment in the District Court, (Acts of 1857, Oh. 190, section 6,) and there being no judgment of acquittal as to either count before the justice, the defendant was properly put upon his trial de novo upon all the counts. Y. The objection that the defendant was tried for more than one offense “at the same time and upon the same information,” was made at no time in the court below, either ■ by motion in arrest, or otherwise, and is therefore not con- • sidered by us. Judgment affirmed.