majority">"Woodward, J.

This is a criminal proceeding, commenced before a justice of the peace, under the act^for the suppression of intemperance, approved January 22, 1855. The question of the constitutionality of the act is made in this case, and nearly all the questions raised in the cause are the same that were presented and fully discussed and considered, in the cases of Santo et al. v. The State, 2 Iowa, 165, and Sanders v. The State, 2 Iowa, 230. As those questions have been so recently debated, and as the act has since that time been modified, it will not be thought necessary to review those which have been decided, nor to enter largely into the consideration of those which are now presented for the first time. The cause has been diligently and carefully prepared; the questions are well presented and fairly considered ; but it will be advisable to present those questions only, which were not made in the cases above referred to.

There are several bills of exceptions referring by letters, as A, B, C, &c., to the motions, demurrers and pleadings, to which they relate, but there are, in the record, no such papers as are thus referred .to; that is, none with corresponding marks or letters. The papers in the record, are marked L, M, N, &c. This would justify the court in not regarding these papers, and consequently the bills of exception, but then the case would be gone. This is adverted to, that the *353taking notice of papers in such condition, may not be drawn into precedent. Concerning tbe identification of papers, see McCrary v. Crandall, 1 Iowa, 117; Brewington v. Patton et al., 1 Iowa, 121; Baltzell v. Nosier, Ib. 590; Ewing v. Scott, 2 Ib. 447; Claussen v. La France, 1 Ib. 226.

First. The defendant pleaded to the jurisdiction of tbe justice of tbe peace, and contended tbat tbe matter and cause were cognizable originally only by tbe District Court, by indictment or presentment. He urged that at common law, there was no information before a justice of tbe peace, but tbat when tbe proceeding was in this manner, it was presented by tbe attorney for tbe State, in tbe same court where indictments were tried, and was tried in tbe same manner. He claimed that tbe constitution of tbe United States guarantied to him all tbe rights be bad at common law, when tbat constitution was adopted. Waiving for tbe present, tbe question of the applicability of the United States constitution to this matter, it must be remarked, tbat tbe foregoing position of tbe defendant, claims tbat tbe jurisdiction, and in some respects the proceedings, of courts and magistrates, are fixed indelibly by tbe United States constitution, as stamped upon tbe common law then existing. This thought cannot be entertained. It gives an unalterable meaning to tbe term “ information,” which in tbe act in question, really signifies no more than “ complaint.” But above this, it cannot be conceded, tbat the jurisdiction of courts and magistrates, and their proceedings, are thus unalterably settled and defined. Again: this case is not one of a “ capital or otherwise infamous crime,” which, by tbe constitution of tbe United States, must be tried under indictment or presentment. Tbe defendant further urges, tbat section 11, of article 1, of tbe constitution of Iowa, has reference to cases cognizable before justices of tbe peace at tbe time of its adoption, and tbat their jurisdiction must be limited to sucb causes. This construction cannot be admitted. The section has a ¡prospective sense, and embraces sucb causes as may be made so cognizable.

Second. Tbe defendant claims tbe right to a trial by a jury *354of twelve, in the first instance, before the justice of the peace. We believe with the defendant, that a jury means twelve men, and that in trials for criminal offences, the defendant has-a right to a trial by such a jury; but we also believe, that the state law may make offences of inferior grades originally cognizable by inferior courts, and that the state constitution may provide, as in section 9, article 1, that the General Assembly may authorize trial by a jury of a less number than twelve men, in such inferior courts. If the party had claimed a trial by jury in the District Court, it would have presented a different question. • But he does not appear by the record, to have done so, although he seems to claim it in his argument; but he appears to have rested on the questions of law which were made before the justice,' among which was his right to a jury of twelve in that inferior tribunal. The defendant falls into an error in his argument. He reasons that on an appeal, the record of conviction before the justice, becomes evidence. This is not so. The record from the justice constitutes no part of the evidence on the trial anew in the District Court. There the case is to be made out anew against the defendant, without reference to the fact of a conviction below. But if the defendant has reference to the construction given to section 3361 of the Code, in Baurose v. The State, 1 Iowa, 374, however correct he may seem to be, his position is controlled by that decision. But as he did not claim a trial by jury in the District Court, this argument is of little consequence in the present cause.

Third. The defendant objects that this statute attaches a penalty to the right of appeal, in requiring a bond, in a penal sum, with sureties, conditioned to pay whatever sums may be adjudged against him in the further progress of the suit; and he quotes the following proposition, and the authorities following, to sustain it as law: “ A state legislature cannot make the right of trial by jury, depend upon giving bond with surety, for the payment of the penalty and costs,” citing Green v. Briggs, 1 Curtis, 311; 1 Kent, 613, note (2) (last edition). However true this doctrine may be, (and its *355apparent plausibility cannot be denied,) it would not give tbe defendant tbe right claimed before tbe justice of tbe' peace, but it would affect tbe terms on wbicb be might call for it in tbe District Court. It does not appear from the transcript, that the defendant gave bond and surety, on bis appeal to tbe District Court; and if be did not, be stood in no position to test tbe principle above claimed by him. But we must repeat, that this court is not informed that be demanded trial by j ury in tbe appellate court. He went up solely upon tbe twenty-two questions of law made before the justice of tbe peace, and these alone were adjudicated. All tbe points made by tbe defendant, not einbraced in tbe former cases above referred to, have thus been noticed, and we see no cause to reverse tbe judgment of tbe court below.

I desire to take this occasion to say, that I differed from tbe majority of tbe court in tbe case of Baurose v. The State, 1 Iowa, 374, and wrote an opinion accordingly, at tbe time, wbicb, for some reason, was not filed and published with tbe cause; and as tbe question may still arise, I do not wish to be considered as held by that decision.

Judgment affirmed.

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