#### The State v. Waltz.

Intoxicating Liquors : nuisance : indictment : description of property. An indictment charging the crime of nuisance by keeping a place for the unlawful sale of intoxicating liquors is good in the absence of averments particularly describing the place, house or building in which the nuisance is maintained ; but while, upon a verdict of guilty ujion such an indictment, the offender may be punished by a fine, no order for the abatement of the nuisance can be made.

*Appeal from Muscatine District Qour-t.*— Hon. W. P. Brannan, Judge.

Filed, June 7, 1888.

Defendant was indicted, for the offense of keeping a nuisance by maintaining a saloon for the unlawful sale of intoxicating liquors. A demurrer to the indictment was sustained, and defendant discharged. The state appeals. •

*A. J.*Balcer, Attorney General, for the State.

*J. J. Bussell,*for appellee.

Beck, J.

-I. The parts of the indictment necessary to be set out here are in the following language: “The grand jury of the county of Muscatine, in the name and by the authority of the state of Iowa, accuse P. J. Waltz of the crime of nuisance, committed as follows: The said P. J. Waltz, on the tenth day of November, A. D. 1886, in the county aforesaid, wilfully and unlawfully did use a certain building, known as a ‘saloon,’ for the purpose of selling therein, and therein did sell, intoxicating liquor of the kind prohibited by law, to-wit, whisky, brandy, rum, gin, ale, wine and beer, to divers persons, and did then and there, by the means aforesaid, keep and maintain a public and common *611nuisance, to the manifest corruption of good morals, contrary to the provisions of the Code of Iowa in such cases made and provided, and against the peace and dignity of the state of Iowa.” The demurrer sustained is in this language : “Comes now the defendant in the above-entitled case, and demurs to the indictment herein filed, for the reason and on the ground that defendant is charged in said indictment with unlawfully using a certain building for the purpose of selling therein intoxicating liquors, and thereby keeping and maintaining a common and public nuisance; and under the law upon which said indictment was founded and based, the proceeding is one in which it is contemplated and intended to affect the certain premises in which said alleged nuisance is said to be maintained; and nowhere in said indictment is there to be found a correct description of said premises where said nuisance is said to exist, nor is there any description whatever of said premises in said indictment.” We are required to determine whether an indictment charging the crime of nuisance by keeping a place for the unlawful sale of intoxicating liquors is good in the absence of averments particularly describing the place, house or building in which the nuisance is maintained. It appears to be the settled rule of the books that such an indictment is sufficient, unless the locality in which the act causing or creating the nuisance is a necessary ingredient of the crime, in that the act would not cause the nuisance if done elsewhere, or is essential to the identity of the offense, or the nuisance is to be abated upon conviction of the accused. 2 Bish. Crim. Proc. secs. 111, 866, and notes ; Whart. Crim. Pl. sec. 155 ; 2 Archb. Crim. Pr. & Pl. 980 ; 2 Whart. Prec. Ind. 719.

II. This court has held that indictments for nuisances committed by keeping places for the sale of intoxicating liquors are good without averments precisely describing the *locus*of the offense. *State v.*Kreig, 13 Iowa, 462 ; *State*v. Schilling, 14 Iowa, 455 ; *State v.*Freeman, 27 Iowa, 333. The indictments in these cases were all found under the statute in force when the *612indictment in this case was found. This observation is intended only to apply to the statute so far as it declares that the keeping of a place for the sale of intoxicating liquors, for purposes not authorized by law, is a nuisance, and may be punished by indictment. Amendments thereto, and changes therein, pertaining to the punishment of the offense, and authorizing proceedings for abatement of the nuisance, have been enacted. Chapter 45, Acts Fifth General. Assembly, forbids the manufacture, keeping and salé of intoxicating' liquors, except as permitted therein, and in a separate section declares that, in case of the violation of the prohibitory provisions of the act, the building or place in which the intoxicating liquors are sold or kept shall be regarded as a nuisance, and abated as such. This statute was embodied in the.Revision of 1860, and substantially reenacted in the Code of 1873. Chapter 143, Acts Twentieth General Assembly, amends the statute as to the provisions relating to the offense, and declares that the furniture, fixtures and contents of a building used for,the unlawful sale of intoxicating liquors, as well as the building itself, shall be regarded as a nuisance. It also prescribes a fine to be assessed upon conviction for the offense, and declares that the nuisance may be abated by injunction in proceedings authorized by the act. Chapter 66, Acts Twenty-first General Assembly, amends the statute last named, increasing the punishments, and broadening its provisions as to injunctions to restrain nuisances, and in some other respects which need not be here particularized. It further provides that if the existence of the nuisance be established, either in a criminal or equitable action, it shall be abated under an order of the court.

III. It will be observed that, under the statute applicable to the case before us, one charged with the offense of nuisance contemplated by it may be indicted, and upon the indictment he may be fined, and the nuisance may be abated. Now, if it be assumed that the order of abatement cannot be made in the absence of allegations in the indictment-particularly describing the *613
      *locus*of tbe nuisance, it does not follow that the offender may not be punished by fine upon conviction under such an indictment. The statute declares that he may be fined upon conviction. It prescribes further proceedings after conviction under such an indictment, to the end that the nuisance be abated. Notv, if the order of abatement cannot be made in the absence of averments as to the locus, the court, upon conviction, will render judgment for the fine, regarding the indictment as not presenting a case for abatement of the nuisance. It will be presumed that the state sought in the prosecution nothing further in the way of punishment than a fine upon defendant. The statute provides for the fine ; the indictment alleges sufficient facts to support a judgment therefor. It does not allege facts sufficient to support an ■ order for abatement. The case will be regarded, then, as one in which the state seeks a conviction and a fine, and nothing more, and .for that purpose the indictment is sufficient. We therefore conclude that the judgment of the district court ought to be

Reversed. -