Hornberger v. State

• Decision Date: 04 February 1896
• Citation: 66 N.W. 23,47 Neb. 40
• Parties: HORNBERGER v. STATE.
• Court: Nebraska Supreme Court

47 Neb. 40

66 N.W. 23

HORNBERGER

v.STATE.

Supreme Court of Nebraska.

Feb. 4, 1896.

Syllabus by the Court.

1. Held, that the information was framed under section 20, c. 50, Comp. St., and charges

a single offense, namely, that the accused kept intoxicating liquors in his place of business for the purpose of sale without a license or permit.

2. The unlawful intent with which the liquors were kept may be presumed from the fact of their sale in violation of law.

3. When, under an information for keeping intoxicating liquors for sale, a sale is proved, the burden is upon the accused to show that he held a license or permit from the proper authorities.

4. The existence of a record must be proved by its production, or an authenticated copy thereof. The nonexistence of a record may be proved by the testimony of one who is cognizant of such fact.

5. The sale of intoxicating liquors within cities and villages can only be carried on under ordinances duly enacted by the corporate authorities thereof. Until a proper ordinance is adopted, no license or permit for the sale of liquors within such corporate limits can lawfully issue.

6. Where a city or village is incorporated by a special act of the territorial legislature, the courts will take judicial notice of such incorporation, in case the legislature has in said act declared it to be a public law.

7. It is not error to refuse to direct a verdict for a defendant in a criminal prosecution, at the close of the testimony for the state, where the evidence before the jury would warrant a conviction.

8. A conviction will not be reversed for the giving of an instruction containing harmless error.

9. An attorney's fee cannot be taxed against a defendant under section 22, c. 50, Comp. St., in a case prosecuted by the county attorney.

10. As the only prejudicial error in the record relates to the entering of judgment upon the verdict, the cause is remanded to the trial court, with directions to enter a proper judgment on the verdict. Dodge v. State, 4 Neb. 220;Griffen v. State, 64 N. W. 966, 46 Neb. 282,--followed.

Error to district court, Sarpy county; Blair, Judge.

Henry Hornberger was convicted of keeping intoxicating liquors for the purpose of sale without a license, and brings error. Reversed, with directions.

Schomp & Corson, for plaintiff in error.

A. S. Churchill, Atty. Gen., and George A. Day, Dep. Atty. Gen., for the State.

NORVAL, J.

Plaintiff in error was convicted of keeping intoxicating liquors for the purpose of sale without a license, in violation of law, and was sentenced to pay a fine of $100 and costs of suit, and an attorney's fee of $50 to William R. Patrick. The information under which the prosecution was had, omitting the verification, is as follows: “State of Nebraska, County of Sarpy, ss. In the District Court of the Fourth Judicial District of Nebraska in and for Sarpy County. The State of Nebraska, Plaintiff, vs. Henry Hornberger, Defendant. Be it remembered, that Henry C. Lefler, county attorney in and for Sarpy county, and in the Fourth judicial district of the state of Nebraska, who prosecutes in the name and by the authority of the state of Nebraska, comes herein in person into this court at this, the October, term, A. D. 1894, thereof, and for the state of Nebraska gives the court to understand and be informed that he has reason to believe and does believe that intoxicating liquors, to wit, beer and whisky, were unlawfully and willfully kept by one Henry Hornberger in a certain two-story frame building, occupied and conducted as a drug store by the said Henry Hornberger, and situated on lot 8, block 102, in the village of Bellevue, in said county and state, on or about the 26th day of May, 1894; that said liquor above described was intended to be, and was then and there being, by and under the direction of the said Henry Hornberger, unlawfully sold, without a license or druggist's permit having been obtained by said Henry Hornberger for the sale of said liquors above described according to law, and that within thirty days preceding the 26th day of May, 1894, to wit, on or about the 23rd day of May, 1894, malt and spirituous liquors, to wit, beer and whisky, were by said Henry Hornberger sold in said premises above described, without license or druggist's permit, in violation of the provisions of chapter 50 of the statutes of Nebraska, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Nebraska. Henry C. Lefler, County Attorney.” The defendant filed a motion in the court below to quash the information, on the ground that it did not set out the names of the persons to whom the sale of the liquors were alleged to have been made, which motion was overruled, and this decision is assigned as error.

It is doubtless true, as counsel for the accused in his brief contends, that in an information for the sale of intoxicating liquors the names of the persons to whom the unlawful sales were made must be alleged, if known; and, if unknown, such fact should be averred as an excuse, or the information will be defective. Such is the holding of this court. State v. Pischel, 16 Neb. 490, 608, 20 N. W. 848, 21 N. W. 468;Martin v. State, 30 Neb. 423, 46 N. W. 618. It will be observed that the information herein does not contain such averment, and for that reason would be bad if the prosecution was for the violation of section 11 of chapter 50 of the Compiled Statutes, which makes it a misdemeanor for one to dispose of liquors without a license. But it is clear the information was framed under section 20 of said chapter, which makes it unlawful for any person to keep intoxicating liquors for the purpose of sale without license, and prescribes a penalty therefor. The gravamen of the charge here is not the selling of liquors in violation of law, but the keeping them in his place of business for sale without a license. The averment in the information relating to sales made by the defendant was inserted to show his unlawful intent in keeping the liquors for sale in contravention of the statute. Such unlawful intentmay be presumed from the fact of their sale without license. Rauschkolb v. State, 46 Neb. 658, 65 N. W. 776. It was unnecessary to allege the names of the vendees of the liquors, and the motion to quash was properly overruled.

Objection is made to permitting Harry F. Clark to answer the following interrogatory, propounded to him by the state: “Q. You may state to the jury, in your own way, what took place there on that occasion with reference to any intoxicating liquors of any character.” The witness had already testified that he was acquainted with the accused, and to the witness' having been in the defendant's place of business on or about a certain day of May, preceding the trial, when the accused and others were present. The criticism that the question was too general in its scope is not tenable. The purpose of the testimony sought to be elicited was relevant and material to the issue to be tried, whatever may be said as to the competency of the answer given by the witness. No objection, however, was made to the answer upon any ground; hence it is not before us for review.

One John Nolan, the chairman of the board of trustees of the village of Bellevue, the municipality within which the alleged offense was committed, was examined as a witness on behalf of the state, and testified to purchasing and drinking beer in defendant's drug store on the 15th of May. The witness made further answers to questions put by the state, over the objections of the defendant, as follows: “76. Q. You may state to the jury whether or not a license for the sale of liquor, or a druggist's permit for the sale of liquor, was ever issued to the defendant by the board of trustees of the village of Bellevue?” (Objected to as incompetent, irrelevant, immaterial, and for the further reason it is not shown that at that time he was chairman of the board of village trustees. Overruled, and defendant excepts.) “A. Not since I have been a member. 77. Q. How long have you been a member of the board of trustees of the village of Bellevue? A. This is my seventh year. 78. Q. Continuously? A. Yes, sir. * * * 84. Q. Mr. Nolan, do you know whether or not the village trustees of Bellevue, by reason of any existing ordinance, are authorized at the present time, or whether or not they were empowered during the month of May last, to issue a license or druggist's permit?” (Objected to as incompetent, hearsay, and that the records of the village of Bellevue are the best evidence. Overruled, and defendant excepts.) “A. We had no ordinance; there was no ordinance empowering us to grant a permit to sell liquor, or give a license, in force them days. 85. Q. And never has been? A. Not that I know of, since I have been on the board. 86. Q. I will ask you if you know whether or not any application was ever made by the defendant Hornberger to the trustees of the village of Bellevue, either for a license or a druggist's permit, during the last year.” (Objected to as incompetent, irrelevant, and immaterial. Overruled, and defendant excepts.) “A. Not to my knowledge.” The testimony objected to was immaterial, since, after the state had proved a sale of liquors, the onus was upon the accused to prove that he had a license or permit from the proper authorities. He not having introduced any evidence tending to establish that he possessed such license or permit, the state was not called upon to establish a negative. State v. Cron, 23 Minn. 140;State v. Bach, 36 Minn. 234, 30 N. W. 764. The defendant could not have been in the least prejudiced before the jury by the admission of the testimony quoted above, merely because the state made a stronger case than it was required to do.

It is contended, in argument, that question 76 was objectionable, in that it did not call for the best evidence,--in other words, whether or not a permit or...