Scott v. State

• Decision Date: 07 June 1917
• Citation: 163 N.W. 813,37 N.D. 90
• Parties: SCOTT v. STATE.
• Court: North Dakota Supreme Court

37 N.D. 90

163 N.W. 813

SCOTT

v.STATE.

Supreme Court of North Dakota.

June 7, 1917.

Syllabus by the Court.

Error cannot be predicated upon a refusal to advise a verdict of not guilty at the close of plaintiff's case, when testimony is thereafter introduced by defendant, unless the motion is renewed at the close of all the testimony.

A single sale will warrant a conviction under an information for keeping and maintaining a common nuisance by keeping a place where intoxicating liquors are sold as a beverage in violation of the prohibition law of this state.

Appeal from Ward County Court; Murray, Judge.

Peter Scott was convicted of keeping and maintaining a common nuisance, in violation of the state prohibition law, and he appeals. Affirmed.

Robinson, J., dissenting.E. T. Burke, of Bismarck, and J. E. Burke, of Minot, for appellant. O. B. Herigstad, State's Atty., and R. A. Nestos, Asst. State's Atty., both of Minot, Wm. Langer, Atty. Gen., and D. V. Brennan and G. K. Foster, Asst. Attys. Gen., for the State.

CHRISTIANSON, J.

The defendant was tried and convicted of the crime of keeping and maintaining a common nuisance, in violation of the provisions of the prohibitory law of this state, and appeals from the judgment of conviction.

[1] The first error assigned is predicated upon the denial of defendant's motion for an advised verdict of not guilty. The record shows that this motion was made at the close of plaintiff's case in chief; that after the denial of the motion, defendant introduced evidence, and that the motion was not renewed at the close of all the evidence. Hence, under numerous decisions of this court, the error, if any, in the denial of defendant's motion for an advised verdict of not guilty was waived. See Buchanan v. Occident Elev. Co., 33 N. D. 346, 157 N. W. 122;Halverson v. Lasell, 33 N. D. 613, 157 N. W. 682.

An examination of the evidence, however, also, discloses that the trial court very properly denied the motion. The testimony clearly showed that the house involved herein was occupied by and under the control of the defendant. One David Franzen testified that during the months of January, February, and March, 1915, he frequented the house occupied by the defendant, about once a week, sometimes alone and sometimes in company with friends, and that during these visits he purchased beer from the defendant, paying him therefor 35 cents per bottle or $1 for three bottles; that he purchased this beer both from the defendant and others in his presence, and that he and his friends drank the same upon the premises in the presence of the defendant, and that at times the defendant himself drank with them. Another witness, Henry Solberg, testified that he obtained beer from the defendant at the house in question, for which he (Solberg) paid 35 cents per bottle, or $1 for three bottles; that he drank such beer on the premises. He further testified that he did not know where defendant obtained the beer, but that it was nice and cool “and suited him all right.”

It is virtually conceded that this testimony, if true, is sufficient to establish the crime alleged. But it is asserted that the witness Franzen was not worthy of belief, and that his testimony should be disregarded. The credibility of this witness and the weight of his testimony was manifestly a question for the jury, and there is nothing in the record to justify a court in adjudging the same incredible as a matter of law.

[2] The court instructed the jury as follows:

“The information in this case charges the maintaining of a common nuisance. Under our laws all places are common nuisances: (1) Where intoxicating liquors are sold, bartered, or given away in violation of law; or (2) where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage; or (3) where intoxicating liquors are kept for sale, barter, or delivery in violation of the law. It is the maintaining of a place where these things, or one or more of them, are done that constitutes the crime. The selling of intoxicating liquors contrary to law does not constitute the offense, nor does the keeping of intoxicating liquors for sale contrary to law constitute the offense. Neither is the offense committed by permitting persons to resort to the place for the purpose of drinking intoxicating liquors as a beverage. They are evidences of the offense. It is keeping the place where these things are done that constitutes the offense. Proof of keeping by the defendant, and that any of the prohibited acts was done by the defendant in such place during such keeping, would make the offense complete. So if you find from the evidence beyond a reasonable doubt that the defendant kept the place as charged in the information or at any time between the dates set out in the information, and that any of the prohibited acts mentioned above were done by him at such place during such time, you should find him guilty as charged in the information. Should you fail to find that the defendant kept the place during said time, or fail to find that any of the acts above set out were done as charged in the information, you should find the defendant not guilty. In this connection, I charge you that it is a violation of law to sell or keep for sale intoxicating liquors as a beverage.”

The defendant assigns error upon that portion of the instruction which is italicized. No exceptions were taken to the instructions, and under the rule announced by this court in State v. Reilly, 25 N. D. 339, 141 N. W. 720, no error can be assigned on the instructions in absence of proper exceptions filed in the court below. As this point has not been raised by respondent's counsel, however, we shall not rest our decision upon this point, but will consider the reasons presented by appellant in support of his contention that the instruction is erroneous.

Appellant concedes that the instruction assailed is abstractly correct, but he says:

“The effect of this charge was to tell the jury that they might convict Scott of a single sale of liquor, whereas the law is well settled that a single sale does not constitute keeping a nuisance.”

Appellant's entire argument is predicated upon the proposition just stated. In our opinion appellant's argument is predicated upon an erroneous legal premise. Section 10117, Compiled Laws 1913, provides:

“All places where intoxicating liquors are sold, bartered or given away, in violation of any of the provisions of this chapter, or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or where intoxicating liquors are kept for sale, barter or delivery in violation of this chapter, are hereby declared to be common nuisances.”

Under the express terms of this statute a place where intoxicating liquors are sold is a common nuisance, and the person who keeps and maintains such place keeps and maintains a common nuisance. It is not essential that the place shall be kept and maintained for any particular or designated length of time, or that any particular number of prohibited acts take place. A person who keeps and maintains a place where intoxicating liquors are sold, as a beverage, becomes guilty of keeping and maintaining such place when the first sale is made, and the place thereby utilized for the prohibited purpose. The authorities seem to be in accord on the proposition that a single sale is evidence of keeping and maintaining a common nuisance within the purview of the statute. State v. Reyelts, 74 Iowa, 499, 38 N. W. 377;State v. Benson, 154 Iowa, 313, 134 N. W. 851;Bepley v. State, 4 Ind. 264, 58 Am. Dec. 628;Shideler v. Tribe of Sioux et al., 158 Iowa, 417, 139 N. W. 897, 900. See, also, Commonwealth v. Kerrissey, 141 Mass. 110, 4 N. E. 820;State v. Cooster, 10 Iowa, 453, 457. We have found no authorities to the contrary, and appellant's counsel have cited none in their brief.

It will be observed that the...