
    Hintermeister v. The State of Iowa.
    A demurrer to an information for selling intoxicating liquors, with a view to their being drunk on or about the premises where sold, which information, after the proper venue, and title of the cause, alleged :l that Jacob Hinter-meister, an evil disposed person, late of said county of Muscatine, in the state of Iowa, on the 12th. day of March, A. D. 1854, at the county and within the city of Muscatine, in a certain frame building then and there being situate, and in the possession and occupancy of the said Jacob Hinter-meister, erected on a parcel of ground in lot six, block ten, in said city, [describing the piece of ground minutely,] then and there three glasses of whiskey to the said Uriah M. Holmes, did sell by the dram, with intent that said whiskey should be drunk by the said Uriah M. Holmes on the premises aforesaid: and this informant avers that the whiskey so as aforesaid sold, was .drunk by the said U. M. Holmes in said building on the premises afore; said, to wit: at the county aforesaid; and he further avers that said whiskey was intoxicating- liquor of the prohibited kind, against the peace and dignity of the state of Iowa, to the evil example of all others in like ease offending, and contrary to the statute in such case mado and provided,” was properly overruled.
    This court cannot consider any error of the justice before whom a cause was originally tried, that was not passed upon by the District Court.
    
      This court, under sections 3091 and 3361 of the Code, in criminal cases; can only regard such errors and defects as affect the substantial rights of parties.
    
      Error to Muscatine District Court.
    
    Oh the 16th of May, 1854, proceedings were commenced before a justice of the peace, against Jacob Hintermeister, charging him with selling intoxicating liquors, with a view to their being drunlc on or about the premises where sold. The information, after the proper venue and title of the cause, read as follows: “ The prosecuting attorney for the county of Muscatine, on the oath of Uriah M. Holmes, a credible witness, now here, gives the court to understand and be informed, that Jacob Hintermeister, an evil disposed person, late of said county of Muscatine, in the state of Iowa, on the 12th day of March, A D. 1854, at the county, and within the city of Muscatine, in said county, and state of Iowa, in a certain frame building then and there being situate, and in the possession and occupancy of the said Jacob Hinter-meister, erected on a parcel of ground on lot six, block ten, in said city, to wit: beginning at a point on the southwest side of Chesnut street, sixty-five feet towards Second street, from the alley which passes through said block; running thence twenty-two feet on Chesnut street towards Second street; thence back at a right angle with Chesnut street, fifty-nine feet to the northeasterly boundary of lot seven in the same block; thence at a right angle towards said alley twenty-two feet; thence to the place of beginning, which said building fronts on Chesnut street, then and there three glasses of whiskey to the said Uriah M. Holmes, did sell by the dram, with intent that said whiskey should be drunk by the said Uriah M. Holmes on the premises aforesaid; and this informant avers that the whiskey so as aforesaid sold was drunk by the said Uriah M. Holmes in said building on the premises aforesaid, to wit: at the county aforesaid ; and he further avers that said whiskey was intoxicating liquor of the prohibited kind, against the peace and dignity of the state of Iowa, to the evil example of all others in like case offending, and contrary to tbe statute in sucb case made and providedand was signed by tbe prosecuting attorney, and sworn to by tbe informant. Tbe defendant, on being brought before tbe justice, demurred to tbe information, for tbe fol* lowing reasons:
    1. Because it was uncertain from tbe information, whether it was against tbe building and ground described, or against tbe person selling.
    2. Tbe faets stated do not constitute an offence.
    3. Tbe faets stated do not constitute tbe building a nuisance.
    4. Tbe. time of selling is not so specifically stated, as to enable tbe defendant to prepare bis defence.
    5. Tbe description of the premises are vague and uncertain.
    6. Tbe information is against tbe property and person both.
    This demurrer was overruled. Tbe defendant then filed bis plea of not guilty, and an affidavit for a change of venue, which application was refused, for tbe reason, as stated in tbe bill of exceptions signed by tbe justice, that tbe trial bad ■■commenced when tbe same was filed. Tbe justice’s transcript shows, that after tbe application for a change of venue bad been refused, tbe attorney for tbe state proposed to waive tbe decision of tbe court, refusing such change, wbieb proposition was rejected by tbe defendant. Trial was then bad, and tbe justice found, that that liquor, at one time as «barged, bad been sold to tbe person charged in tbe information. It was also proved that Hintermeister bad possession of said building and establishment; and thereupon, tbe same was declared a nuisance, amerced in a fine of fifty •dollars, ordered to be abated, and tbe premises, buildings, furniture and fixtures, ordered to be sold to pay tbe fine and costs. After tbe judgment was rendered, Hintermeister filed an affidavit for an appeal, alleging that injustice bad been done: 1. In overruling tbe demurrer; 2, In refusing a change of venue; 3. In rendering judgment against the bouse and ground as a nuisance.
    ' On tbe bearing in tbe District Court, tbe demurrer filed before tbe justice, being folly argued, was overruled. Tbe. judgment of tbe justice was, thereupon, affirmed, except as to that part ordering a sale of tbe building and premises.. Judgment was then rendered against Hintermeister and' bis sureties in appéal, for tbe sum of fifty dollars, .with, costs, and tbe furniture and fixtures belonging to tbe establishment ordered to be sold to pay tbe same. Hintermeis-ter and bis sureties now bring tbeir writ of error to reverse-tbis judgment, and assign errors as follows :■
    1. Tbe court erred in overruling tbe motion of defendant to set aside tbe information.
    2. Tbe court erred in overruling tbe demurrer of defendant.
    8. Tbe court erred in deciding that defendant was not entitled to a change of venue, under tbe application made before tbe justice; and in sustaining tbe decision of tbe justice therein, tbe said justice having no- authority to render judgment against tbe building, nor to command tbe sheriff to seize tbe same.
    4. Tbe court erred in refusing tbe defendant a new trial in tbe District Court, on bis affidavit for an appeal.
    
      J. Scott Richman and- Henry O' Odnnor, for plaintiff in error..
    
      David 0. Oloud\ Attorney-General' (by W. Penn. Olarhe)r for tbe state.
   Weight, C. J.

Tbe plaintiff in error relies- upon three, grounds to reverse tbis case. First, tbe overruling tbe demurrer. We have examined tbe information, and conclude that tbis demurrer- was very properly overruled. Tbe information charges, that tbe sale was made on tbe 12th day of March, 1854, at tbe county of Muscatine,, in a certain-frame bouse, .situate on a part of lot 6, block 10, in tbe city ©f Muscatine ; that tbe bouse was at tbe time of tbe sale, in tbe possession and occupancy of said Hintermeister; and that tbe sale was made by him, with intent: on tbe part of Hintermeister, that tbe liquor so sold should be drunk on tbe said premises. Tbe particular part of said lot is very minutely described. So, tbat aside from tbe objection, that tbe facts charged in tbe information did not constitute tbe building a nuisance, we tbink tbe information was, as- to all tbe other causes assigned, free from defects. Indeed, we may say, it is exceedingly well drawn, charging tbe offence with great clearness and precision. So far as relates to tbe charging tbe building as a nuisance, we tbink tbe information is, in fact, against Hintermeister, and tbat tbe premises and building are only described as tbe place where be sold tbe prohibited liquor. So much of tbe order or judgment on tbe petition and demurrer, as directed the nuisance to be abated, and assessed a fine against tbe said building, may have been incorrect. In tbe District Court, however, this-error was corrected, and it is from that judgment the defendant brings bis writ of error, and not tbat of tbe justice. By the Code, section 3361, tbe District Court, on bearing these-appeals, must render such judgment as tbe magistrate should have rendered. In this respect, tbe finding and order of tbe District Court was such as tbe justice should have rendered, and we see no error in overruling tbe demurrer on tbe other points made.

Tbe next error assigned, is in refusing tbe change of fenue. Without referring to tbe statement of tbe justice, that'tbe application was made after tbe trial commenced, or the waiver of the prosecuting attorney of any objection to such change of venue, it is sufficient to state, tbat this ruling of tbe justice does not appear, to have been urged before tbe District Court. Tbe demurrer was overruled after argument, but there is no reference to tbe application for a change of venue. We cannot consider any error of tbe justice, tbat was not passed upon by tbe District Court. Eon aught we know, this ruling of tbe justice was waived in the court below.

The last error assigned is, that the District Court refused tbe defendant a new trial, or trial on tbe merits, on such appeal As sustaining this argument, we are referred to the case of Kuner v. The State, decided at the last term of this. Court. Without intimating an opinion as to tbe correctness. or incorrectness of tbat decision, we think that this case is distinguishable from that in two essential particulars. In that case, defendant in his affidavit stated that injustice had been done him, for the reason that the justice’s judgment was against evidence. In this, there is no such averment, but the injustice is alleged to consist in overruling the demurrer, refusing the change of venue, and declaring the house a nuisance. There was no averment upon which he would have a right to a new trial, even under the case referred to by defendant. But in the case of Kuner, it. also appears, that the District Court refused to hear and try the allegations of fact alleged in the appeal. In this case, the record does not show any such request or application of the defendant, to be so heard, or that the court refused to try the question of his guilt. On the contrary, it would appear that after the demurrer was overruled, no further objection was made, and judgment was thereupon rendered.

¥e are unable, therefore, to see any such error or defect in this record, affecting the substantial rights of the defendant, as to justify the reversal of the judgment. It is only such error and defects as do affect substantial rights, that we can regard, under the Code. See sections 3099 and 3361. That is the law, and we do most cheerfully abide by both its letter and spirit.

Judgment affirmed.  