State v. Dellaire

• Decision Date: 23 November 1894
• Citation: 60 N.W. 988,4 N.D. 312
• Parties: STATE v. F. W. DELLAIRE
• Court: North Dakota Supreme Court

60 N.W. 988

4 N.D. 312

STATE v. F. W. DELLAIRE

Supreme Court of North Dakota

November 23, 1894

Error to District Court, Stutsman County; Rose, J.

F. W Dellaire was indicted for keeping and maintaining a common nuisance. A demurrer to the indictment was sustained, and the state brings error.

Reversed.

Reversed.

S. L Glaspell, for the state.

It is unnecessary to state the names of the persons to whom liquor is sold. People v. Sweetser, 1 Dak. 308; Whart. Cl and Pl. Pr. 155, 251; Whart. Cr. Law, 2445; Black on Intoxicating Liquors, 464. Where the offense charged is the keeping and maintaining a common nuisance, a particular sale is not the gravamen of the offense. Black on Intoxicating Liquor, 481, 486; Skinner v. State, 22 N.E. 115; State v. Brennan, (S. D.) 50 N.W. 625; Com. v. McKenna, 33 N.E. 389; State v. Farley, 53 N.W. 1089. A nuisance is a continuing offense. The indictment specifies the time as on the first day of January, A. D. 1892, and at divers times up to and including January 10th, 1894. The indictment was framed upon authority of Com. v. Sheehan, 9 N.E. 839. The meaning of this allegation is to charge one offense for a single period of time, beginning with the first day and ending with the last day named. State v. Reno, 21 P. 803; Whart. Cr. Pl. and Pr. 321, 126. The indictment is not bad for duplicity. State v. Billby, 21 Wis. 205: State v. Schweiten, 27 Kan. 499; State v. Notan, 10 At. Rep. 481; Black on Intoxicating Liquor, 440.

Barrett & Marcy, for defendant in error.

BARTHOLOMEW C. J. CORLISS, J., concurring in part and dissenting in part.

OPINION

BARTHOLOMEW, C. J.

The state sued out a writ of error from an order sustaining the defendant's demurrer to an indictment, which, omitting the formal parts, charged the defendant with "the crime of keeping and maintaining a common nuisance, committed as follows: The said F. W. Dellaire and Charles White, on the 1st day of January, A. D. 1892, and at divers times up to and including January 10th, 1894, in this County of Stutsman and State of North Dakota, did keep a place, to-wit, the certain brick building known as the 'Tom Driscoll Building,' situated on lot 8 in block 24, according to the original plat of the City of Jamestown, in said county, in which place intoxicating liquors were kept for sale, and where persons were permitted to resort for the purpose of drinking intoxicating liquors as a beverage, and where intoxicating liquors were sold contrary to the form of the statute in such case made and provided, against the peace and dignity of the State of North Dakota." The demurrer presents three principal points: First, the indictment does not name the parties to whom the intoxicating liquors were sold, or give any excuse for not so doing; second, it does not state that such liquors were sold or kept for sale in violation of any provision of the prohibition statute; third, it is uncertain as to the time when such liquors were so kept in said building, or when parties resorted to said building for the purpose of drinking intoxicating liquors as a beverage, or when intoxicating liquors were sold in said building.

Referring now to the first point, it has been repeatedly held that when it was sought to prosecute a party for the crime of selling intoxicating liquors as a beverage, the indictment should state the names of the parties to whom such liquors were so sold, or excuse the omission. But this rule is so far from uniform that it is not even possible to say upon which side of the question the weight of authority is arrayed. In a note to Section 464, Black, Intox. Liq., the authorities for and against the position are cited in great numbers. In this case the offense charged is not selling intoxicating liquors, but keeping and maintaining a common nuisance. Section 13 of our prohibition statute (Chapter 110, Laws 1890) declares that "all places where intoxicating liquors are sold, bartered or given away, in violation of any of the provisions of this act, 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 act, are hereby declared to be common nuisances," and it is further provided that the owner or keeper of such place shall, upon conviction thereof, "be adjudged guilty of keeping a common nuisance." We notice that selling intoxicating liquors contrary to the provisions of this act does not constitute the offense. Nor does keeping 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. Proof that all the prohibited acts were done would do no more. The offense is single. Since the selling does not constitute the crime in this case, we think the logic of those cases which hold, in prosecutions for selling intoxicating liquors, that the name of the party to whom the sale was made must be stated, does not apply. If it be necessary to state the name of the party to whom the liquor was sold, then, for the same reason, it must be necessary to state the names of the parties who were permitted to resort to the place for the purpose of drinking. This is not claimed, and we think has never been held. Yet in each case the name sustains the same relation to the substantive offense. The case of McLaughlin v. State, 45 Ind. 338, is confidently relied upon as authority for the position of the defendant in error; and it must be admitted that the case is strongly in his favor, but we think it should be distinguished. True, that was a prosecution under a statute which declared all places where intoxicating liquors were sold contrary to the act to be common nuisances; but the court said: "By the section now under consideration, the act of selling by the person keeping the room, etc., is what constitutes the offense, without any reference to the manner in which the house is conducted or kept." This cannot be said under our statute. The offense of which the party must be convicted, if convicted at all, is that of "keeping and maintaining a public nuisance." A nuisance must be something that can be abated,--a continuing act. Selling a drink of liquor to A. is an instantaneous act, and one that cannot be abated; by keeping the room where such liquor is sold is a continuing act, and the statute declares it a nuisance, and directs its abatement. Other provisions of the statute provide punishment for the act of selling. See State v. Freeman. 27 Iowa 333. In Black, Intox. Liq. § 486, it is said: "When the prosecution is upon a statute which provides that all places kept for the illegal sale of liquor shall be deemed public nuisances, and directs the punishment of the keeper of such place, an indictment against such person will ordinarily be good if it describes the offense in the language of the statute." It has been so held in State v. Welch, (Me.) 7 A. 475; Commissioners v. Howe, 79 Mass. 26, 13 Gray 26; Commissioners v. Wright, 94 Mass. 190, 12 Allen 190; Skinner v. State, 120 Ind. 127, 22 N.E. 115; State v. Freeman, supra. Tested by this rule, this indictment is sufficient upon this point. ...