State v. Dahms

• Decision Date: 25 November 1914
• Citation: 29 N.D. 51,149 N.W. 965
• Parties: STATE v. DAHMS.
• Court: North Dakota Supreme Court

29 N.D. 51

149 N.W. 965

STATE

v.DAHMS.

Supreme Court of North Dakota.

Nov. 25, 1914.

Syllabus by the Court.

Appellant was convicted of the crime of maintaining a common nuisance. Concededly, there was no evidence introduced proving or tending to prove that he was a principal in the unlawful transaction; it being the state's contention merely that he aided and abetted another in the commission of the crime charged.

Held, that there is no evidence to support such contention, and that it was therefore prejudicial error to instruct the jury that they might convict the defendant upon the theory that he aided and abetted another in keeping and maintaining such nuisance.

Following prior decisions of this court which are cited in the opinion, construing section 10117, Comp. Laws 1913 (section 9373, Rev. Codes 1905), held, that the offense therein defined is the unlawful keeping and maintaining of a place where certain prohibited acts are committed, and no one except the owner or keeper of such place can be adjudged guilty of such offense.

Appeal from District Court, Stark County; W. C. Crawford, Judge.

Arthur E. Dahms was convicted of keeping and maintaining a common nuisance, and appeals. Reversed.

Burke and Bruce, JJ., dissenting.Geo. R. Robbins and Geo. A. Bangs, both of Grand Forks, for appellant. J. P. Cain, State's Atty., of Dickinson, Andrew Miller, Atty. Gen., Alfred Zuger, of Bismarck, and John Carmody, Asst. State's Atty., of Hillsboro, for the State.

FISK, J.

Appellant was convicted in the lower court of the crime of keeping and maintaining a liquor nuisance and was sentenced to imprisonment in the county jail for 90 days and to pay a fine, including costs, of $600. He has appealed from the judgment. Prior to the pronouncement of judgment defendant moved, both in arrest of judgment and for a new trial, upon numerous grounds, among which are alleged insufficiency of the evidence to warrant the verdict, and alleged erroneous instructions to the jury prejudicial to the defendant. These are the only grounds which we need notice.

[1] It is conceded on the part of the state's counsel, as we understand them, that there is no competent testimony in the case to warrant a finding that defendant was a principal in keeping and maintaining the nuisance, their contention being that he merely aided and abetted another in so doing, and this appears to have been the view of the learned trial judge, who instructed the jury as follows:

“Under the statutes of North Dakota there is no distinction between the principal and accessories to a crime, and I will read to you that particular section: ‘All persons concerned in the commission of a crime, whether it is a felony or a misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or not being present, have advised and encouraged its commission, are principals in any crime so committed.’ [Comp. Laws 1913, § 9218.] So you will see, gentlemen of the jury, that all persons stand on the same footing, who actually commit the crime, if any, or who aid and abet in the commission of the same.

Now, the questions for you, gentlemen of the jury, to determine in this case, are whether or not there was a place kept where intoxicating liquors were sold as a beverage or where persons were permitted to congregate for the purpose of drinking intoxicating liquors or where intoxicating liquors were kept for sale. First, to determine whether or not there has been a place kept and maintained; second, who kept and maintained such place; and, third, whether or not this defendant kept and maintained the place or aided and abetted in the keeping and maintaining of such a place.

If you find from the facts in this case that at the stockyards near Taylor in this county and state there was a nuisance kept and maintained on the 4th of July, 1912, and that this defendant while not actually keeping the place yet aided and abetted in the keeping of the same, then you should find the defendant guilty as charged in the information; but, unless the state has proven each of these facts to your satisfaction beyond a reasonable doubt, then the defendant is entitled to be acquitted.

Now, gentlemen, I think this covers about all the law for you to determine in this case as to whether or not under the statutes of this state this defendant has committed the offense with which he stands charged. Whether or not he committed the crime or aided and abetted in its commission makes no difference, he is equally guilty. The person who actually commits the crime and the person who aids and abets in the commission of the crime are jointly guilty of the offense.”

Without quoting from the testimony, it will suffice to merely state that it is wholly insufficient to sustain the conviction except upon the theory that defendant aided and abetted in the commission of such crime. There is concededly a total lack of proof that defendant had any proprietary interest in the keeping or the maintaining of the nuisance or that he was even for an instant in charge or control thereof; nor was he instrumental in the least in directly aiding or assisting in the actual sales of liquor on the premises constituting such nuisance. If, however, the giving of the instruction above quoted was proper as a matter of law, then, for the purposes of this appeal, it may be conceded that the evidence was such as to warrant a conviction thereunder.

The state relies, in support of the correctness of the instruction, upon the following authorities: State v. Rozum, 8 N. D. 548, 80 N. W. 477;State v. Ekanger, 8 N. D. 559, 80 N. W. 482;State v. Herselus, 86 Iowa, 214, 53 N. W. 105;State v. Snyder, 108 Iowa, 205, 78 N. W. 807;Webster v. State, 110 Tenn. 491, 82 S. W. 179;Id., 75 S. W. 1020;Phillips v. State, 95 Ga. 478, 20 S. E. 270;State v. Lord, 8 Kan. App. 257, 55 Pac. 503;Buchanan v. State, 4 Okl. Cr. 645, 112 Pac. 32, 36 L. R. A. (N. S.) 83;McLain v. State, 43 Tex. Cr. R. 213, 64 S. W. 865.

A brief analysis of these cases will, we think, disclose that they are not in point and do not support the state's contention.

In the Rozum Case the court inferentially held against the contention of the state in the case at bar by placing its decision upon the ground that the husband, who was prosecuted for keeping and maintaining a common nuisance, was guilty of keeping and maintaining such nuisance, because of the fact that he was the head of the family and knowingly suffered intoxicating liquors to be kept for sale or sold as a beverage in his home, and knowingly suffered persons to resort thereto for the purpose of drinking intoxicating liquors contrary to law. By placing the decision upon the ground that by his conduct he kept and maintained the nuisance instead of upon the ground that he aided and abetted his wife in keeping and maintaining the same, it is apparent that the court did not consider the fact that he aided and abetted his wife in the unlawful enterprise of any controlling importance. In the Ekanger Case the court on this point merely adheres to its prior decision in the Rozum Case.

[2] The Iowa cases are readily distinguishable from the case at bar on the ground that the Iowa statute differs from that in this state. Our statute (section 10117, Comp. Laws 1913 [section 9373, R. C. 1905]) 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. * * * And the owner or keeper thereof shall, upon conviction, be adjudged guilty of maintaining a common nuisance.”

This section has been construed in numerous cases in this court, and it is firmly settled that the offense therein defined consists of the keeping and maintaining of the place. State v. Dellaire, 4 N. D. 312, 60 N. W. 988;State v. Thoemke, 11 N. D. 386, 92 N. W. 480;State v. Kruse, 19 N. D. 203, 124 N. W. 385;State v. McGillic, 25 N. D. 27, 141 N. W. 82.

In the opinion by Mr. Justice Carmody in the latter case it was said:

“The selling of intoxicating liquors contrary to the provisions of this act does not constitute the offense nor does the keeping of intoxicating liquors for sale contrary to the provisions of this act 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, or some of them, are done, that constitutes the offense. Proof of keeping by the defendant, and that any one of the prohibited acts was done by the defendant in such place during such keeping, would make the offense complete.”

In the more recent case of State v. McGillic, this court, in speaking of the object and purpose of the above section, says:

“That law is aimed primarily at a place wherein is permitted the commission of acts violative of the prohibition law, the statute condemning the place of the violations by declaring it to be a common nuisance. The person in control or charge, whether temporarily or continuously, is the keeper of such nuisance and the person punishable for its maintenance. * * * Under the law prior to chapter 193 (Laws 1907), the owner might lease to a tenant or permit an occupant to use, control, and occupy a place wherein a nuisance might be maintained by such lessee, occupant, or person in control, without the owner being criminally liable, unless the state could prove such facts as would render the owner liable as a joint principal in the unlawful business.”

This would seem to clearly negative the idea that a person who merely aids or abets another in the maintenance of a liquor nuisance can be adjudged guilty of...