
    Baurose v. The State of Iowa.
    Where, on the hearing of a motion, in which a jury could take no part, the court asked the parties whether they desired a jury, which was answered negatively; Held, that the defendant below had not waived his right to a jury on the merits.
    It is the duty of the District Court, on an appeal from a justice of the peace in a criminal case, under sections 3358 and 3361 of the Code, to first inquire into the case made by the appellant, and determine whether error, prejudicial to the substantial rights of the defendant below, exists.
    In this inquiry, the presumptions are in favor of the correctness of the proceedings.
    If the appellant fails to show probable error before the justice, it is the duly of the court to affirm the judgment.
    If the alleged ground of appeal is, that the evidence did not justify the conviction, the appellant, either by his affidavit, made for the purpose of appeal, or by bill of exceptions taken on the trial, should bring the evidence so before the court as to render error at least probable; and in case he does not do so, the judgment should be affirmed.
    
      Kuner v. The State of Iowa, December term, A. D. 1854, overruled.
    Where an affidavit for an appeal in a criminal case, charging the defendant with unlawfully retailing intoxicating liquors, set out the evidence on that point as follows: “Dr. Fairfield came in, and called for brandy, and S. M. Phelps called for rum; Dr. Fairfield poured out of a bottle what looked like brandy into a glass, and drank it; and Phelps poured something out of a bottle into a glass, and drank it, and the bottle was labeled 1 Bumand this was all the knowledge of the witness, that either of the liquors drank by Fairfield or Phelps was intoxicating liquor,” Held, That this evidence, without more, as that Fairfield or Phelps objected that what was given them was not that which they called for; or something, at least, leading to a conclusion that the article drank was not intoxicating liquor; did not show ground for a reasonable doubt, that the liquors sold were intoxicating liquors, to wit, brandy and rum.
    Where, under section 931 of the Code, separate judgments are rendered by a justice of the peace, against a defendant charged with retailing intoxicating liquors, the District Court, on affirming the judgment of the justice, possesses no authority to consolidate the judgments, and render a new judgment against the defendant, and his sureties on the appeal bond.
    
      Error to the Scott District Court.
    
    This action originated before a justice of tbe peace, by information, filed September 15, 1854, containing three counts, and cbaxging the defendant below, Baurose, with unlawfully retailing intoxicating liquors. Trial by jury. Verdict, guilty on two counts, and judgment tbereon. Appeal was taken to the District Court, and on the call of the case in that court, the prosecuting attorney moved an affirmance of the judgment of the justice. At this stage of the ease, the court asked, if either of the parties desired a jury, and on being answered in the negative, proceeded to hear the appeal, and affirmed the judgment of the justice. After which, the defendant demanded a new trial, and asked for a jury to try the issue, which 'was- refused, on the ground that he had waived that right. Upon overruling the motion for a new trial, the court proceeded to render a judgment anew, consolidating the two judgments rendered by the justice, which judgment was rendered, not only against the defendant, but also against the sureties on appeal. The affidavits for the appeal to the District Court, among other things, set out the evidence before the justice as follows; “ Thereupon came a jury to try this cause, who were impan-neled. After which, E. 0. Tade, the prosecuting witness, was introduced and sworn, who testified that, on the 15th day of July last, he was present at the place charged in the information, and, while there, Dr. Fairfield came in and called for brandy, and S. M. Phelps called for rum; that the said Fairfield poured out of a bottle what looked like brandy into a glass, and drank it; and that said Phelps poured out of a bottle, into a glass, something, and drank it; and that the bottle was labeled ‘ Bum and this was the only knowledge of said witness, that either of the liquors drank by said Fairfield and Phelps, was intoxicating liquor.” The defendant now brings the cause here for review, and assigns for error the following: 1. That the court erred in affirming the judgment of the justice, the alleged error in the court below being as to the sufficiency of the proof to sustain the verdict of the jury. 2. In denying the defendant a trial by jury. 8. The prosecution is not in the name of the state of Iowa.
    
      
      Wm. & Leffingwell, for tbe appellant.
    
      Whitaker &'Grant, for tbe appellee.
   Isbell, J.

Tbe first and second specifications of error,. • resolve themselves into tbe same .question, viz: whether tbe District Court erred in refusing tbe defendant a trial by jury. So far as tbe waiver of that right by tbe defendant is concerned, it appears that the question propounded by tbe court, viz: whether either party desired a jury, was asked at a stage of tbe cause, where a jury could take no part; that is to say, on tbe bearing of a motion. We cannot, therefore, consider tbe defendant’s right to be tried by a jury, as waived by him; and if be would be entitled to it on other ground, it should not now be refused him.

Tbe question whether he was or was not entitled to such,, trial, involves a construction of sections 3358 and 3361 of tbe Code, as to what is the duty of tbe District Court, when an appeal comes before it from tbe trial of a justice in case of a misdemeanor, on tbe alleged ground that tbe evidence did not justify tbe conviction. And on this point, we should have little hesitation in pronouncing, were it not, that a construction, has already been given to this statute, in this particular, by tbe former bench, which we are unwilling to adopt.

In Kuner v. The State, decided at the December term, 1854, Hall, J., in delivering tbe opinion of the court, says t “ Where a party charged with a criminal offence, appeals upon tbe alleged ground that tbe evidence would not justify tbe conviction, be is entitled to a trial de novo in tbe District Court.” If it is meant by this (which tbe case there seems to indicate), that the defendant, on an appeal from a justice of the peace, on the trial of a misdemeanor, on such alleged ground, is entitled to a trial de novo in tbe District Court, as a matter of common right, in tbe absence of all showing that tbe evidence on tbe trial was insufficient to justify tbe conviction ; or, in other words, that when tbe appeal is on that alleged ground, in tbe absence of such showing, tbe District Court has not tbe right to deny such trial, we cannot conclude that, such is tbe meaning of tbe statute.

It is clear from section 8361, that the appeal addresses itself to tbe court in the first instance, and that a judgment of the court is contemplated, before a new trial can be bad. The language, “may order a new trial,” contemplates a right to refuse ’ such trial. No distinction is made by the statute, on account of the ground of appeal, as to whether it be for error in matter of law or fact. ' Section 8358, contemplates in case of an appeal, that an affidavit shall be made, stating the facts showing the alleged errors, a requirement which would seem unnecessary, unless to use in the court above, to inform the court of the probable ground of error in fact.

The language of these two sections entire, is as follows:

Sec. 3358. The defendant may appeal to the next term of the District Court, if on the rendition of the judgment, he, or some one for him, make or cause to be made, an affidavit,, stating the facts showing the alleged errors in the proceedings or conviction complained of, and that he verily believes that injustice has been done.”
“ Sec. 3361. After hearing the appeal, the court shall give-judgment without regard to technical errors or defects, which have not prejudiced .the substantial rights of the defendant, and may render such judgment as the magistrate should have rendered, or may, according to the justice of the case, affirm or reverse the judgment, in whole or in part, as to all or any of the defendants, if there be more than one, or may order a new trial.”

The language of the latter section, is in substance the same as that in sections 3097 and 3098, prescribing the duty of this court, on -the hearing of a writ of error to the District Court. The language there used is, “ must give judgment without regard to technical errors or defects, which do not affect the substantial rights of the parties. May reverse, affirm, or modify the judgment of the District Court, or may, if necessary, order a new trial.” Yet, if we were to attempt to adopt the doctrine in this court, that if the error complained of was, that the evidence did not justify the conviction, the defendant would be entitled to a trial de novor with» out showing probable error in fact, it would at least be considered unsound.

But it is said, that to refuse a trial de novo, violates the right of trial by jury; and that when the constitution says, that in all criminal prosecutions, the accused shall have a right to a speedy trial by an impartial jury, this • means a common law jury of twelve men. This, perhaps, might be true, were it not also for the provision of the constitution, that the General Assembly may authorize trial by a jury of less number than twelve men in inferior courts. It is sufficient that the accused was tried by a constitutional jury. To assume that no offence may be tried by a jury of a less number than twelve, would be to oust justices of the peace, as the law now stands, of all jurisdiction in such cases; for being inferior courts, the statute confers their powers, and as there is no authority for their summoning a jury of twelve, and as the accused is entitled to be tried by a jury, the trial of any given case by a justice might be entirely prevented— an extremity in which we see no need of being placed. As we understand the statute, it is the duty of the District Court, on an appeal in such case coming up, to first inquire into the case made by the appellant, and determine whether error, prejudicial to the substantial rights of the defendant, exists. In this inquiry, the presumptions are in favor of the correctness of the proceedings. If the defendant fails to show probable error before the justice, it is the duty of the court to affirm the judgment. If the alleged ground of appeal is, that the evidence did not justify the conviction, the defendant, either by his affidavit, made for the purpose of appeal, or by bill of exceptions taken on the trial, should bring the evidence so before the court, as to render error at least probable; and in case he does not do so, the court should affirm the judgment. Nor is there any hardship in requiring this, the accused being entitled to counsel.

Regarding the duty of the court in this light, let us turn to the case before us, and see if the defendant made such a showing of probable error in fact, as to render it error in the court to refuse him a new trial. From the whole record, including tbe affidavit for appeal, we conclude that tbe insufficiency of evidence complained of as error, is in tbis, tbat tbe evidence did not justify tbe jury in concluding tbat tbe liquors sold were intoxicating. Tbe affidavit, which is all tbe evidence on tbat point, is as follows: “Dr. Fairfield came in and called for brandy, and S. M. Phelps called for rum; tbat Dr. Fairfield poured out of a bottle what looked like brandy, into a glass, and drank it; and tbat tbe said Phelps poured out of a bottle into a glass something, and drank it, and tbat tbe bottle was labeled 1 Rum;’ and tbis was all tbe knowledge of said witness tbat either of tbe liquors drank by said Fairfield and Phelps, was intoxicating liquor.”

Under this state of tbe evidence, dislcosed by tbe defendant in bis affidavit, without more, as tbat Fairfield or Phelps objected, tbat what was given them was not tbat which they called for, or something at least leading to a conclusion in tbis direction, we think there is not ground for a reasonable doubt, but tbat they drank tbat which they called for; or, in other words, tbat tbe liquors sold were intoxicating liquors, to wit: brandy and rum. "We therefore conclude, tbat there was not probable ground of error disclosed in tbe finding of tbe jury, and tbat there was no error on tbe-part of tbe court in affirming tbe judgment:

As to tbe other specification of error, it is sufficient to say, tbat tbe case is certainly prosecuted in tbe name of tbe state of Iowa; and it is not necessary tbat it should be expressed in tbe papers, at every step in tbe progress of a criminal prosecution, tbat it is by the authority of the state of Iowa. See Wrocklege v. The State, ante, 167, decided at tbe Jpne term of tbis court.

So far.as objected here, we see no error, and bad tbe court simply affirmed tbe judgments of tbe justice, and directed the manner of their execution, we should have found nothing in tbe record to correct. But on bearing tbe motion for a new trial, it proceded to render a judgment, consolidating tbe two judgments of tbe justice, which must be separate (Code, § 931), and also making this new judgment against tbe sureties on appeal, as well as defendant, for wbicb we see no authority. In tbis there was error, of wbicb we feel bound to take notice, although not assigned. It is tbe duty of tbis court to see tbat tbe proper judgment is rendered. So much, therefore, of tbe judgment as affirms tbe j udgments of tbe justice, is affirmed; and so much as follows such affirmance, is reversed, and tbe court is directed to render judgment anew on each fine separately, and for costs, and to direct tbe manner of tbe execution of such judgment.  