State v. Albertson

• Decision Date: 25 November 1910
• Citation: 20 N.D. 512,128 N.W. 1122
• Parties: STATE v. ALBERTSON.
• Court: North Dakota Supreme Court

20 N.D. 512

128 N.W. 1122

STATE

v.ALBERTSON.

Supreme Court of North Dakota.

Nov. 25, 1910.

Syllabus by the Court.

The questions raised by the assignments of error relating to the denial of the defendant's demand for a bill of particulars, and to allowing the Attorney General to ask questions which the defendant claims assumed facts unproven and questions which were leading, are identical with the same questions passed upon by this court in the case of the State v. Empting (decided at this term) 128 N. W. 1119, and what is said by the Chief Justice in that case disposes of these questions.

Section 9794, Rev. Codes 1905, requires that the names of all witnesses for the prosecution, known to the state's attorney to be such at the time of filing the information, shall be indorsed or otherwise exhibited thereon, but provides that other witnesses may testify in behalf of the prosecution on the trial of said action, the same as if their names had been indorsed on the information. It is not error for the trial court to allow the examination of such witnesses.

The information covers the time from January 1, 1909, until May 18, 1910. The Attorney General, against the objection of defendant, was permitted to ask some of the witnesses this question: “How many times have you drunk malt or beer there in the last year and a half?” The objection to the question that it embraced more time than alleged in the information was overruled. This ruling, even if erroneous, is not prejudicial. The time inquired about was at best but a slight variance, and numerous witnesses answered substantially the same question without any objection on the part of the defendant.

Error cannot be predicated upon the refusal of the court at the close of the state's case to advise the jury to return a verdict of not guilty, as the jury is not bound by such advice.

No error was committed in permitting the state, after it had rested its main case, to reopen the case for the introduction of the testimony of McDonald. It is a familiar rule of district court practice for the trial court at any time prior to the close of the case, in the exercise of its judicial discretion, to reopen the case and receive further evidence.

The statements contained in affidavits used on a motion for a new trial are purely impeaching, and the general rule is that such evidence does not furnish a good ground for granting a new trial.

The question of the insufficiency of the evidence to justify the verdict is not properly raised.

Appeal from District Court, Burleigh County; W. H. Winchester, Judge.

C. H. Albertson was convicted of maintaining a common liquor nuisance, and appeals from an order denying a new trial. Affirmed.Newton & Dullam, for appellant. Andrew Miller, Atty. Gen., Alfred Zuger and C. L. Young, Asst. Atty. Gens., for the State.

CARMODY, J.

Appellant was on the 26th day of May, 1910, convicted by a jury in the district court of Burleigh county of keeping and maintaining a common nuisance, in violation of section 9373, Rev. Codes 1905. There is no specific place set forth in the information where the nuisance was kept, but it alleges only that it was kept at a certainplace located in the city of Bismarck, in Burleigh county, N. D. The defendant demanded a bill of particulars showing the description of the place, building, or other structure where the alleged nuisance was kept, the kinds of liquor sold, when and to whom sold. The demand was not verified. The trial court denied the demand.

The first four errors assigned by appellant relate to this ruling. The Attorney General was permitted, over the objections of defendant, to ask questions which defendant claims assumed facts unproven and questions which were leading. The fifth, sixth, thirty-fourth, thirty-fifth, thirty-sixth, thirty-seventh, thirty-eighth, thirty-ninth, fortieth, forty-fourth, and forty-sixth errors assigned relate to the rulings on this class of evidence. The questions raised by the assignments of error hereinbefore mentioned are identical with the same questions passed upon by this court in the case of State v. Empting (decided at this term) 128 N. W. 1119, and what is said by the Chief Justice in that case disposes of the assignments of error hereinbefore mentioned in the case at bar.

The Attorney General, over the objection of defendant, was permitted to call as a witness Fred Weir, whose name was not indorsed on the information. In this there was no error. Section 9794, Rev. Codes 1905, reads as follows: “All informations filed under the provisions of this article, shall be by the state's attorney of the county or judicial subdivision, or by the person appointed to prosecute, as informant; and said state's attorney or person appointed to prosecute shall subscribe his name to said information and indorse or otherwise exhibit thereon the names of all witnesses for the prosecution known to him to be such at the time of the filing of the same, but other witnesses may testify, in behalf of the prosecution, on the trial of said action, the same as if their names had been indorsed upon the information.” The Attorney General informed the court that he had no knowledge of this witness at the time he filed the information. See State v. King, 9 S. D. 628, 70 N. W. 1046;Hill v. People, 26 Mich. 496;People v. Hall, 48 Mich. 482, 12 N. W. 665, 42 Am. Rep. 477;People v. Moran, 48 Mich. 639, 111 N. W. 1131;State v. Church, 6 S. D. 89, 60 N. W. 143;State v. Kent, 5 N. D. 516, 67 N. W. 1052, 35 L. R. A. 518. The information covers the time from January 1,...