Nelson v. State

Decision Date17 February 1898
PartiesNELSON v. STATE.
CourtNebraska Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court.

In a prosecution for having in his possession certain intoxicating liquors, among which it was charged that there was beer, the defendant introduced evidence tending to show that there was no beer, and that the liquid described in the information as beer was a tonic, not intoxicating in its nature. The state offered in evidence a search warrant issued in an independent proceeding, in which it was recited that an information under oath had been filed by a credible resident freeholder, whose name was given, that such freeholder had reason to believe, and did believe, that the accused had in his possession beer, among other intoxicating liquors, kept for the purpose of sale, and which were being sold, in violation of chapter 50, Comp. St. On this warrant there was a statement in the return that the officer executing the same had, upon search, found on the premises of the accused 67 bottles of beer. This warrant and return the court admitted in evidence. Held that, as the recitations of the warrant and return were with reference to the essence of the crime for the commission of which the accused was being tried, the admission of the warrant and return as independent evidence was prejudicially erroneous.

Error to district court, Burt county; Powell, Judge.

Hugo E. Nelson was convicted of keeping and selling intoxicating liquors without a license, and he brings error. Reversed.Ira Thomas and H. H. Bowes, for plaintiff in error.

C. J. Smyth, Atty. Gen., Ed. P. Smith, Dep. Atty. Gen., and W. G. Sears, for the State.

RYAN, C.

In the district court of Burt county, Hugo E. Nelson was convicted of having in his possession on May 27, 1896, intoxicating liquors, to wit, whisky, beer, wine, ale, alcohol, and brandy, kept and intended for sale, and which were being sold, without the license which is required in chapter 50 of the Compiled Statutes. We shall consider but one assignment of error, which is that the court erred in receiving in evidence Exhibit 1. This was identified by the officer by whom the return thereon was signed as the warrant under which he had acted before the preliminary information was filed in this case. It was therefore executed in an independent proceeding, of the nature of which we are not advised, except that, as we gather from the oral testimony adduced in this case and the warrant and return hereinafter described, that proceeding was one under section 20, c. 50, Comp. St. The contents of the exhibit are as follows:

“In the County Court of Burt County, Nebraska. The State of Nebraska, County of Burt. To the Sheriff or Any Constable of Said County: Whereas, Chas. A. Patterson, a credible resident freeholder of said Burt county, has made complaint in writing and upon oath before me, Frank E. Ward, county judge in and for Burt county, Nebraska, that he has reason to believe, and does believe, that Hugo E. Nelson, of the county of Burt, state of Nebraska, on the 27th day of May, 1896, in the county aforesaid, then and there being, did then and there have, and now has, in his possession, intoxicating liquors, known as whisky, beer, wine, ale, alcohol,...

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