State v. Cook

• Citation: 206 N.W. 786,53 N.D. 429
• Decision Date: 21 December 1925
• Docket Number: No. 4993.,4993.
• Parties: STATE v. COOK.
• Court: United States State Supreme Court of North Dakota

53 N.D. 429

206 N.W. 786

STATE

v.COOK.

No. 4993.

Supreme Court of North Dakota.

Nov. 2, 1925.

Rehearing Denied Dec. 21, 1925.

Syllabus by the Court.

A criminal complaint, on preliminary hearing before the magistrate, need not state the facts constituting the offense with the same technical accuracy as an information.

It is too late to challenge the sufficiency of a preliminary complaint, which charges the defendant with the specific crime of bootlegging, committed by selling one gallon of alcohol to a named person within a certain county, by a motion to set aside the information in the district upon the ground that the complaint failed to allege that the sale was made on premises not owned or controlled by the defendant, when the defendant acquiesced in the jurisdiction of the magistrate, moved for a continuance, gave a bond for his appearance, and made no objection to the sufficiency of the complaint.

For reasons stated, it is held that the demurrer to the information was properly overruled.

For reasons stated, it is held that no error was committed in the rulings of the trial court upon the issue of a former conviction.

An information charging the crime of bootlegging is sufficient as against an attack by motion in arrest of judgment, although it contains no specific description of the premises where the sale is alleged to have been made, and merely charges that the offense was committed within a certain county.

A sale of alcohol in the streets of a municipal corporation is a sale upon premises not owned, kept, maintained, or controlled by the defendant, within the purview of the bootlegging act.

For reasons stated, it is held that the evidence supports the verdict of the jury to the effect that the liquid sold was alcohol, and was sold on premises not owned, kept, maintained, or controlled by the defendant.

Proof having been made by the state that the substance sold was alcohol, it was not, in the circumstances disclosed in the record, necessary to go further and prove that it was sold or fit for beverage purposes.

For reasons stated, held, that certain remarks of the court were not prejudicial.

For reasons stated, held, that the omission of the word “owned” from the instruction defining the crime of bootlegging was error without prejudice.

Appeal from District Court, Cass County; M. J. Englert, Judge.

Lewis Cook was convicted of bootlegging, and he appeals. Affirmed.

Wood & Breaw, of Fargo, for appellant.

H. F. Horner, State's Atty., J. E. Hendrickson, Asst. State's Atty., and V. R. Lovell, all of Fargo, for the State.

JOHNSON, J.

Defendant was prosecuted and convicted upon an information charging the crime of bootlegging. He made separate motions to set aside the information; to dismiss at the close of the case; and that the jury be advised to return a verdict of not guilty. A motion for a new trial was also made. All were denied, and a demurrer to the information was overruled. The defendant appeals from the sentence and judgment of the trial court entered upon the verdict of the jury; also from the orders overruling the demurrer and denying the motions aforesaid.

The principal contentions of the defendant may be, and were by his counsel on the oral argument, summarized under the following propositions: That the state failed to prove that the liquid alleged to have been sold by the defendant was fit for beverage purposes; that the substance was intoxicating; and that the liquor was sold for beverage purposes.

The testimony of the state tends to show that on or about July 13, 1923, the defendant sold and delivered to Emil Nelson, in the presence of Harrison Carter, both prohibition agents, a gallon of liquid which he represented to be alcohol; that the sale was made, by prior appointment, in a public street in the city of Fargo. A chemical analysis of the liquid disclosed, according to the testimony of the state's chemist, that it contained 93.85 per cent. by volume of ethyl alcohol; that by use of the most delicate method the chemist found about one-fifth of 1 per cent. of acetone and a slight trace of other organic impurities. This chemist, on cross-examination, amplifying his testimony on the direct examination, stated that the presence of this infinitesimal amount of acetone and other organic matter was immaterial, and that the substance, exclusive of the alcohol therein, was, to all intents and purposes, ordinary water. There was no trace of ethyl alcohol. A druggist testified in behalf of the defendant that he had also made a chemical analysis, and found that the liquor contained 94 per cent. of alcohol, about one-fourth of 1 per cent. of acetone, and less than one-half of 1 per cent. of diethylthylate. This witness explained that acetone acts as a solvent, and that it is injurious to the membranes of the stomach. The other substance, he said, was one of the denaturants used by the government to render alcohol unfit for beverage purposes; that the effect of consuming that substance would be a gastric disturbance-vomiting. He stated that the substance sold by the defendant was not alcohol, as designated by the government, and that the liquid was “not exactly” fit for beverage purposes. On cross-examination this witness, however, testified that a trace of acetone was one of the “impurities you expect to find in ordinary alcohol.” He said, further, that he supposed that this “ordinary alcohol,” which had been described in the testimony, “is being used for beverage purposes right along.”

The defendant assigns 19 errors. With a few exceptions, with which we shall expressly deal in this opinion, these alleged errors are all embraced within the three propositions heretofore stated.

[1][2] It is first contended that the trial court should have set aside the information upon jurisdictional grounds, for the reason that the defendant had not had preliminary hearing on the charge of bootlegging. The defendant had a preliminary hearing before a justice of the peace on a charge described in the complaint as bootlegging. The preliminary complaint contained also the following language:

“That at the said time and place the said defendant did willfully, unlawfully, and feloniously sell and deliver to this affiant * * * one gallon of alcohol.”

Section 10530, C. L. 1913, subsec. 4, provides that the complaint must state “the acts or omissions complained of as constituting the crime or public offense named.” The specific offense named in the criminal complaint before the committing magistrate was bootlegging. It is urged that the district court was without jurisdiction because the complaint failed to allege that the sale was made upon premises not owned, kept, maintained, or controlled by the defendant, substantially in the language of the bootlegging statute (chapter 194, S. L. 1915). Defendant insists that this allegation is essential to the validity of the criminal complaint.

There is no merit in defendant's contention. The offense of bootlegging was specifically named in the complaint. It may be conceded that not all the particulars requisite to a valid information were stated, and yet it does not follow that the district court had no jurisdiction upon the ground that, in legal contemplation, there had been no preliminary hearing. State v. Hart, 30 N. D. 368, 152 N. W. 672;State v. Webb, 36 N. D. 235, 162 N. W. 358;State v. Barnes, 3 N. D. 131, 54 N. W. 541. After the testimony had been taken before the magistrate, the defendant was held to answer the charge of bootlegging. The complaint clearly apprised the defendant of the charge against him. It need not state the particulars of the offense with the same technical accuracy as an information. The former instrument is usually prepared by persons without technical knowledge of the law, and should not be examined with the same exacting scrutiny as the information, which constitutes the basis of the prosecution.

[3] It is next contended that the demurrer to the information should have been sustained. The demurrer is based upon the ground that the information charges the crime of bootlegging as a second offense, although the information upon its face shows that there could not be or have been a second offense thereunder, and that the information shows upon its face that the offense charged therein appears to have occurred before the alleged prior conviction of the defendant. The information reads as follows:

“That at said time and place the said defendant did willfully, unlawfully, and feloniously sell and deliver to one Emil Nelson one gallon of alcohol, said sale and delivery not being made upon premises kept, maintained, or controlled by the said defendant; that heretofore, to wit, on the 16th day of January, 1924, this defendant was convicted in the district court of Cass county, N. D., on the charge of bootlegging, and was duly sentenced by the judge of the district court to serve a term of five months in the Cass county jail and to pay a fine of $200, and to serve thirty days additional in event of the nonpayment of said fine.”

While it is true that there is some inconsistency in the dates appearing upon the face of the information, we do not think there is any merit to counsel's contention upon this point. It clearly appears that the state intended to charge a second offense, based upon a conviction had subsequent to the date on which the sale took place, which is the basis of this prosecution. The trial court...