State v. Burcham

• Decision Date: 12 January 1920
• Citation: 44 N.D. 604,176 N.W. 657
• Parties: STATE v. BURCHAM.
• Court: North Dakota Supreme Court

44 N.D. 604

176 N.W. 657

STATE

v.BURCHAM.

Supreme Court of North Dakota.

Jan. 12, 1920.

Syllabus by the Court.

Where the defendant was convicted of maintaining a common nuisance by keeping and maintaining a so-termed “blind pig,” and where upon appeal the defendant has challenged the sufficiency of the evidence to charge him with the keeping or maintaining of such “blind pig,” it is held that there is some creditable evidence in the record concerning the keeping and maintenance of the “blind pig” by the defendant, and, though meager, this evidence was for the consideration of the jury, as a matter of fact.

Appeal from District Court, Richland County; Allen, Judge.

S. M. Burcham was convicted of maintaining a liquor nuisance, where intoxicating liquors were kept for sale, and he appeals. Affirmed.

Robinson, J., dissenting.C. J. Kachelhoffer, of Wahpeton (W. S. Lauder, of Wahpeton, of counsel), for appellant.

Jos. G. Forbes, of Wahpeton, for respondent.

BRONSON, J.

In the trial court the defendant was convicted of maintaining a common nuisance. He has appealed from the judgment therefor upon the sole ground that the evidence is insufficient to justify the verdict of guilty rendered. The information charges the defendant and one McDonald with keeping and maintaining a place at Hankinson, between January 5, 1913, and June 1, 1914, where intoxicating liquors were kept for sale, and sold, and where persons resorted for purposes of drinking the same, as a beverage, contrary to the statute. The defendant alone was tried.

The evidence discloses that, during the time alleged in the information, the defendant conducted a restaurant, with a pool room called the Gem restaurant, in Hankinson. This place proper consisted of two rooms-a large room used for a lunch counter and pool room, and a smaller room used as a kitchen. Adjacent to those rooms, in the same building there was another small room, where there was maintained a “blind pig.” There is no dispute in the record that in this room, called a “blind pig,” during the time alleged, beer was kept for sale, was sold, and was there drunk by purchasing customers, in abundance plenty. The question upon this appeal is who conducted, or was responsible for conducting, this “blind pig.” The defendant maintains that there is no evidence, as a matter of law, in the record, which formed any question of fact for the jury, that the defendant either conducted or was responsible for so conducting this place. The record has been examined at length.

The defendant asserts and testifies that McDonald was running the “blind pig,” this same McDonald who later worked for him in the saloon business at Nashua, Minn.; that, although he had leased this entire building, McDonald later got this room from him (just when he does not know), and ran this “blind pig” separate and apart from his rooms. In disposing of the beer in this room, the “modus operandi” was to lay down the money there, and soon, out through a “cubby-hole,” so termed, the beer appeared, the dispenser unseen.

There is some evidence, however, that McDonald was working for the defendant; that he was cooking in the restaurant; that he worked upon or “fixed” the pool tables. The defendant received many shipments of liquor. One witness testified that he ordered beer frem the defendant while in this “blind pig” room, and McDonald got and was paid for the beer. This and other evidence, though meager, was sufficient, in our opinion, to take the case to the jury upon the questions of fact presented. See State v. Rozum, 8 N. D. 548, 558, 80 N. W. 477;State v. Kruse, 19 N. D. 203, 206, 124 N. W. 385;State v. Corn, 76 Kan. 416, 91 Pac. 1067;Scott v. State, 37 N. D. 90, 163 N. W. 813, L. R. A. 1917F, 1107;State v. Wheeler, 38 N. D. 456, 165 N. W. 574. Notoriously, “blind pigs” neither squeal aloud nor see openly who their keepers are.

The judgment is affirmed.

CHRISTIANSON, C. J., and GRACE and BIRDZELL, JJ., concur.

ROBINSON, J. (dissenting).

Colloquially this is known as a blind pig or common nuisance case. The complaint is that between January, 1913, and June, 1914, at Hankinson, in Richland county, the defendant did commit the crime of keeping a place for the sale of intoxicating liquors. A jury found Burcham guilty, and the judgment is that he be taken from the bosom of his family-a wife and five young lasses-and imprisoned in the county jail for three months, and that he pay a fine and costs amounting to $340. McDonald was clearly guilty. He had a government license to sell liquor, and there is documentary evidence showing that in each week he imported and received large shipments of beer. But McDonald escaped, and went to Minnesota, and, as it appears, Burcham has been made the scapegoat to carry away into the wilderness and the county...