#### The State of Iowa, Appellee, v. S. D. Viers, Appellant.

1. Intoxicating Liquors: nuisance : intent to sell from building : instructions. It is not necessary that the intent be to sell intoxicating liquors in or from the building in which they are kept, if kept for sale at all, to constitute an offense under sections 1523 and 1543 of the Code.

2. -: -: PRESENCE OE LIQUORS IN building. The sale of liquors from a building, occupied by the defendant, constitutes a •nuisance under the above provisions of the Code, whether the liquors are kept therein or not.

3. -:-: instructions : practice. Where the instructions given in a cause are correct as far as they go, a party cannot complain of the failure to give certain other instructions which were not requested by him.

4. Hew Trial: mistare oe witness, The fact that erroneous statements were made by a witness upon the trial, because of his misunderstanding of a question put to him will not entitle the party affected thereby to a new trial in the absence of any showing of prejudice because of such evidence.

5. "Witnesses: interest : instructions. A jury may properly he instructed, that in weighing the testimony of the witnesses they should “ consider their demeanor and appearance, and their lack of interest in the result of the action, and their interest or disposition to shield the defendant,” if in the opinion of the court the case demands such an instruction, and no abuse of discretion is shown.

*Appeal from Montgomery District Court.*— Hon. N. W. Macy, Judge.

Wednesday, May 13, 1891.

The defendant was indicted and convicted of the crime of maintaining a nuisance by keeping a building for the sale of intoxicating liquors. He now appeals to this *court.*

Affirmed.

*Q. E. Richards*and *Edward*Mills, for appellant.

*John T.*Stone, Attorney General, and *R. W.*Beeson, County Attorney, for the State.

*398Beck, C. J.

I. The court gave an instruction to the jury in the following language: “2. The specific i. intoxicating saii'ce?in'tent bundinlxTM iusu'uouous. offense charged against the defendant herein is that of keeping a nuisance ; that is, of keeping a building or place within -¿his county, wherein he sold, and kept with the intent to sell, intoxicating liquors, contrary to law. A building in which intoxicating liquors are in fact sold unlawfully, or in which intoxicating liquors are' kept for the purpose of sale or exchange unlawfully, is ' a nuisance, and the person who keeps a building for ■ that purpose is guilty of keeping a nuisance. In order to make out the offense the presence of intoxicating liquor is essential and necessary.” This instruction is the ground of complaints by the defendant. It is first insisted that the instruction is erroneous in that it fails to inform the jury that to establish the crime charged it must appear that intoxicating liquors were kept in the' building for the unlawful sale in and from it. The instruction is correct. “The keeping of intoxicating liquors with the intent on the part of the owner thereof, or any person acting under his authority, or by his permission, to sell the same within the state contrary” to law, is prohibited. Code, sec. 1523. The violation of this prohibition constitutes the crime of nuisance, and is punished accordingly. Code, sec. 1543. The plain language of these statutes provides that the keeping of intoxicating liquors for sale in this state consti- • tutes a nuisance. If the purpose be to sell- anywhere in the state, the defendant is guilty.

II. It is next insisted that the court should have directed that the presence of the liquors in the building ' ?n buiWiuguors is essential to constitute the crime. We think otherwise. If one house is used for the sale of intoxicating liquors, which are kept in another, there can be no doubt but both áre nuisances. If the liquors were kept in a house not occupied by the defendant, yet sold in a-house occupied by him, he was guilty of committing a nuisance by making sales of liquor i

*399III. Counsel for the defendant complain because certain instructions upon points of the case involving 3* practiue. presumptions as to keeping liquors for illegal sale were not given, but no such instructions were asked. Those given are correct as far as they go. As the defendant did not ask for others he cannot now complain. *State v. Helvin,*65 Iowa, 289 ; *State v.*Tweedy, 11 Iowa, 350; *Mackie v. Railroad,*54 Iowa, 540 ; *State v. O’*Day, 69 Iowa, 368 ; *Hall v. Stewart,*58 Iowa, 681 ; *Gwynn v. Duffield,*66 Iowa, 708.

IY. A witness, after the verdict, made affidavit that he did not understand a question asked him, and, 4. New trial: mistake of therefore, he gave an incorrect answer. . , Without1 holding that a new trial may be granted upon such a ground, it surely must appear, if it be a ground for' a new trial, that prejudice resulted to defendant from the incorrect evidence. But in this case it does not appear that prejudice did result from the evidence ; for it is very clear that the verdict could not have been based upon the incorrect evidence, or that it tended to influence the verdict of the jury.

Y. The court directed the jury that in weighing the testimony of witnesses they should “consider their 6 witnesses- ' interest: iñ-demeanor and appearance, and their lack of interest in the result of the action, and their interest or disposition to shield the defendant.” The instructions are very proper, and, we think, quite timely, in this case. The court below was required to give this instruction if in his opinion the case demanded it. In the absence of any evidence showing that in this regard the court abused its discretion, or that there was an absence of facts justifying it, we shall presume that the demeanor and conduct of the witnesses, and their manner of testifying, justified the instructions.

The verdict is sufficiently supported by the evidence. The judgment of the court below is affirmed.