State v. Eggl, 5016.

• Decision Date: 04 January 1926
• Docket Number: No. 5016.,5016.
• Citation: 206 N.W. 784,53 N.D. 520
• Parties: STATE v. EGGL.
• Court: North Dakota Supreme Court

53 N.D. 520

206 N.W. 784

STATE

v.EGGL.

No. 5016.

Supreme Court of North Dakota.

Nov. 28, 1925.

Rehearing Denied Jan. 4, 1926.

Syllabus by the Court.

Certain assignments of error predicated on the admission of evidence, and instructions given to the jury are examined, and, for reasons stated in the opinion, held not well founded.

On an appeal in a criminal case, it is the duty of the Supreme Court to give judgment, without regard to technical errors or defects or exceptions which do not affect the substantial rights of the parties.

A party predicating error on an attorney's argument to the jury must present a record affirmatively showing that objectionable language was used.

Appeal from District Court, Towner County; Buttz, Judge.

Ferdinand Eggl, was convicted of engaging in the liquor traffic, and he appeals. Affirmed.Cuthbert & Adamson, of Devils Lake, for appellant.

Charles H. Houska, State's Atty., of Cando, and Geo. F. Shafer, Atty. Gen., for the State.

CHRISTIANSON, C. J.

The defendant was convicted of the crime of engaging in the liquor traffic, and appeals from the judgment of conviction, and from the order denying his motion for a new trial. The crime of engaging in the liquor traffic is defined thus:

“Any person who shall within this state, manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor, shall be guilty of the crime of engaging in the liquor traffic.” Laws 1923, c. 268, § 1B.

The information in this case charges that the defendant committed the crime of engaging in the liquor traffic in the following manner: That on or about September 4, 1924, in the county of Towner, N. D., the said defendant did then and there willfully and unlawfully sell intoxicating liquors as a beverage to one P. B. Simonson.

[1] The first assignments of error are predicated on rulings in the admission of evidence, and the instructions of the court, relating to sales of intoxicating liquor at a time some five days prior to the date charged in the information.

The defendant is a farmer residing on his farm in Towner county. The complaining witness is a farm laborer who was employed, during the fall of 1924, by a neighbor of the defendant. The complaining witness testified that on Sunday, August 31, 1924, he accompanied his employer to defendant's home; that while there he spent some time in a bunkhouse with certain employees of the defendant; that at this time he saw these men drink intoxicating liquor in the bunkhouse; that he and the other men present chipped in money and some one was sent to the defendant's dwelling house, a short distance away, to procure liquor; and that such person brought back intoxicating liquor which the men drank in the bunkhouse. There was no objection whatever to this evidence when it was first offered, but later all the testimony which had been given relating to the drinking of intoxicating liquor in the bunkhouse was stricken out upon motion of defendant's counsel, on the ground that it had not been shown that the defendant was present at the time. After such motion had been made and granted further evidence was adduced to the effect that the complaining witness and others present in the bunkhouse, chipped in money for the purpose of purchasing intoxicating liquor, that such liquor was obtained from the defendant's dwelling house, and that he knew that it was procured from the defendant. No objection was made to any of the evidence on the ground that it was inadmissible because it related to an offense other than that charged in the information. No motion was made to strike any of the evidence, and at the close of all the evidence, no motion was made to compel the state to elect whether it would rely for a conviction upon the alleged sale of liquor on August 31, 1924, or upon the alleged sale of September 4th. The complaining witness further testified that on September 4, 1924, he went to the defendant's home and purchased a certain bottle of intoxicating liquor from him. This bottle was identified and offered and admitted as an exhibit upon the trial. The complaining witness testified that he and the defendant were the only persons present at the time of the sale of intoxicating liquor on September 4, 1924.

The defendant did not testify, and no evidence whatever was introduced which in any manner contradicted the testimony of the complaining witness as to the transaction of September 4th. The defendant, however, did place upon the witness stand the employer of the complaining witness, and such employer testified that on August 31, 1924, he was in the bunkhouse on the premises of the defendant at the time referred to in the testimony of the complaining witness, and that at this time he did not see any one drink any intoxicating liquor or any men chip in money for the purpose of buying liquor. In otherwords, so far as the transaction of August 31, 1924, was concerned, the employer of the complaining witness flatly contradicted the testimony of the latter, and this was the only incident on which the defendant offered any testimony tending to contradict the testimony of the complaining witness; hence the record presented to us for review shows that defendant's counsel refrained from objecting to any of the testimony adduced relating to the alleged transaction on August 31, 1924, on the ground that it related to an offense other than that charged in the information, and that practically all of the testimony was admitted without any objection whatever. And the defendant produced and placed upon the stand the employer of the...