State v. Dahms

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

149 N.W. 965

29 N.D. 51

STATE OF NORTH DAKOTA v. ARTHUR E. DAHMS

Supreme Court of North Dakota

November 25, 1914

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

From a judgment of conviction of the crime of keeping and maintaining a common nuisance, defendant appeals.

Reversed.

Judgment reversed and a new trial ordered.

Geo. R Robbins and Geo. R. Bangs, for appellant.

Where the statutes distinctly limit the punishment to persons who participate in the act only in a certain way, they furnish the rule for the court. 1 Bishop, New Crim. Law, § 657 subdiv. 2.

A person who by acts induces a crime is not punishable unless the statute upon such crime makes him so. Anderson v South Chicago Brewing Co. 173 Ill. 213, 50 N.E. 655; Bishop, Crim. Law, § 657; State v. Cullins, 53 Kan. 100, 24 L.R.A. 212, 36 P. 56; Jones, Chat. Mortg. § 458; Cobbey, Chat. Mortg. § 637; Gage v. Whittier, 17 N.H. 312; Pratt v. Maynard, 116 Mass. 388.

So with statutes penalizing certain sales, where they have not been held to apply to vendees. State v. Cullins, 53 Kan. 100, 24 L.R.A. 212, 36 P. 56; State v. Turner, 83 Kan. 183, 109 P. 983; Wakeman v. Chambers, 69 Iowa 169, 58 Am. Rep. 218, 28 N.W. 498; Sterling v. Jugenheimer, 69 Iowa 210, 28 N.W. 559.

The keeping and maintaining of a place, etc., constitutes the crime of keeping a common nuisance. The owner or keeper only can be punished. State ex rel. Kelly v. McMaster, 13 N.D. 58, 99 N.W. 58; State v. Dellaire, 4 N.D. 312, 60 N.W. 988; State v. Rozum, 8 N.D. 548, 80 N.W. 477; Com. v. Wood, 97 Mass. 225; Com. v. Carroll, 124 Mass. 30; Hunter v. State, 14 Ind.App. 683, 43 N.E. 452; Rev. Codes, 1905, § 2764; 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; Laws of 1907, chap. 193.

There must be a proprietorship or control, or keeping. Com. v. Galligan, 144 Mass. 171, 10 N.E. 788; Com. v. Murphy, 145 Mass. 250, 13 N.E. 892; Plunkett v. State, 69 Ind. 68; State v. Gravelin, 16 R. I. 407, 16 A. 914; Com. v. Churchill, 136 Mass. 148.

It is not for the jury to say what evidence it will believe and what it will not believe. McPherrin v. Jones, 5 N.D. 261, 65 N.W. 685, 38 Cyc. 1735; 2 Thomp. Trials, 2d ed. § 2423, p. 1687; 24 Cyc. 193; Hartford Life & Annuity Ins. Co. v. Gray, 80 Ill. 31; 3 Brickwood's Sackett, Instructions to Juries, §§ 3380 et seq.; Evans v. George, 80 Ill. 51; McMahon v. People, 120 Ill. 584, 11 N.E. 883; Chicago, B. & Q. R. Co. v. Roberts, 35 Colo. 498, 84 P. 68; Underhill v. Chicago & G. T. R. Co. 81 Mich. 43, 45 N.W. 508; Fruit Dispatch Co. v. Russo, 125 Mich. 306, 84 N.W. 308; Drew v. Watertown Ins. Co. 6 S.D. 335, 61 N.W. 34; Georgia, S. & F. R. Co. v. Thompson, 111 Ga. 731, 36 N.E. 945; Lomer v. Meeker, 25 N.Y. 361, with citations in 3 N.Y. Anno. Dig. 341; 11 N.Y. Anno. Dig. 845 et seq.

J. P. Cain, State's Attorney, Andrew Miller, Attorney General, Alfred Zuger, and John Carmody, Assistant Attorneys General for the State.

A person, though not the owner or keeper of a common nuisance, but who resides at such place, and knowingly allows another to conduct such a nuisance therein, is guilty of the offense. 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.

Aiding and assisting another in the sale of intoxicating liquors in any manner, however slight, renders such aider guilty. State v. Snyder, 108 Iowa 205, 78 N.W. 807; Webster v. State, 110 Tenn. 491, 82 S.W. 179; Phillips v. State, 95 Ga. 478, 20 S.E. 270; State v. Lord, 8 Kan.App. 257, 55 P. 503; Buchanan v. State, 4 Okla. Crim. Rep. 645, 36 L.R.A. (N.S.) 83, 112 P. 32.

Any person who aids or abets in the commission of such offense is guilty as a principal. 23 Cyc. 209, P G.; 1 R. C. L. 139; McLain v. State, 43 Tex. Crim. Rep. 213, 64 S.W. 865; 12 Cyc. 187.

It is the duty of the jury to find the facts from the testimony of the witnesses, and the instruction of the court was proper. 1 Brickwood's Sackett, Instructions to Juries, §§ 327 et seq.; State v. McPhail, 39 Wash. 199, 81 P. 683; State v. Thoemke, 11 N.D. 386, 92 N.W. 480; State v. Moran, 112 Iowa 535, 84 N.W. 524; Cupps v. State, 120 Wis. 504, 102 Am. St. Rep. 996, 97 N.W. 210, 98 N.W. 546; Zube v. Weber, 67 Mich. 52, 34 N.W. 264; Knox v. Knox, 123 Iowa 24, 98 N.W. 468.

FISK, J. BRUCE, J., BURKE, J., dissenting.

OPINION

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 ninety 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.

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.' 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; Phillips v. State, 95 Ga. 478, 20 S.E. 270; State v. Lord, 8 Kan.App. 257, 55 P. 503; Buchanan v. State, 4 Okla.Crim. 645, 36 L.R.A. (N.S.) 83, 112 P. 32; McLain v. State, 43 Tex.Crim. 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 Rosum 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...