State v. Ehr

• Decision Date: 29 June 1925
• Docket Number: No. 4925.,4925.
• Citation: 52 N.D. 946,204 N.W. 867
• Parties: STATE v. EHR.
• Court: North Dakota Supreme Court

52 N.D. 946

204 N.W. 867

STATE

v.EHR.

No. 4925.

Supreme Court of North Dakota.

June 29, 1925.

Syllabus by the Court.

Instructions examined, and, for reasons stated in the opinion, held correct.

Where, in a prosecution for bootlegging under chapter 194, Sess. Laws 1915, it appears that the sale took place in a public street in front of the residence of the defendant, who was the owner of the fee to the middle of such street, it is held that the sale was made in a “public place * * * not owned, kept, maintained or controlled” by the defendant, within the meaning of chapter 194, defining the crime of bootlegging.

Additional Syllabus by Editorial Staff.

In view of Comp. Laws 1913, § 7624, generally it is not error to permit jurors to inspect, during deliberations, exhibits of personal property, which are not handled or used in manner inconsistent with evidence.

In general to have “control” of a place is to have authority to manage, direct, superintend, restrict, or regulate it.

Appeal from District Court, Richland County; Geo. M. McKenna, Judge.

John Ehr was convicted of bootlegging, and he appeals. Affirmed.J. A. Dwyer, of Hankinson, and W. E. Purcell and Lauder & Lauder, all of Wahpeton, for appellant.

Geo. F. Shafer, Atty. Gen., John Thorpe, Asst. Atty. Gen., and C. E. Lounsbury, State's Atty., and W. L. Divet, Asst. State's Atty., both of Wahpeton, for the State.

JOHNSON, J.

Defendant was tried and convicted of the crime of bootlegging, under chapter 194, S. L. 1915. In the information, as originally filed, he was charged with having sold intoxicating liquor in Richland county, but in a bill of particulars, furnished on demand and in obedience to an order of the court, the sale was alleged at Hankinson.

The testimony of the state tended to show that the defendant had sold a pint bottle of liquor to a detective or secret service man, in a street in Hankinson, and in front of defendant's home. Defendant, testifying in his own behalf, denied the charge.

[1] Ten errors are assigned. Eight assignments challenge the instructions, and two are based on rulings in admitting evidence. Assignments 2 and 3 assert error based on the alleged failure of the court to advise the jury that the state charged and must prove that the defendant sold the liquor within the limits of Hankinson in Richland county. The assignment is without merit. The learned trial court distinctly told the jury, at least four times, that the state must prove the sale to have been made in the city of Hankinson. The same must be said of the fourth assignment. It is true the court said that the state must prove beyond a reasonable doubt the material allegations of the information (one of which originally had been that the sale took place in Richland county); the court, however, directly thereafter said that one of such material allegations was that the sale was made in Hankinson. The duty of the state in this regard was clearly stated by the court. It is inconceivable that the jury could have been misled by the part of the charge which appellant segregates and alleges to be erroneous.

The fifth assignment attacks an instruction which was as follows:

“In this case the evidence on behalf of the state has been largely given by paid investigators or detectives. I instruct you that the fact that the witness is or is not paid investigator or detective does not determine the question whether such witness does or does not tell the truth, and the mere fact that witnesses testifying in this case may be paid investigators or detectives does not justify you in disregarding their testimony, although the fact that they are paid investigators or detectives is one which you are entitled to and should take into consideration in determining whether they are or are not telling the truth. If you are satisfied that their testimony is true, after taking into consideration all the other facts and circumstances as disclosed by the evidence, comparing their testimony with the testimony of other witnesses in the case, you should give their testimony the weight that it should properly have. The state's attorney of this county has a lawful right to employ such investigators or detectives, and you have a right to believe them. All the law requires in considering such evidence is that it be carefully scrutinized by you to ascertain whether or not the testimony of such witness is biased or whether the interest or service has influenced such witness to an extent that would reflect upon the effect of his testimony. If you are of the opinion that such witness is biased, or that his testimony is influenced by his service or his interest in the case, or that he is not telling the truth, then you should give such testimony as little weight as is proper, but, on the other hand, if you are satisfied that such witness is telling the truth, then you should give to such evidence the same weight as you would that of any other witness.”

We do not believe it is necessary to cite many authorities in support of the correctness of this instruction. Assuming that it be true that a paid investigator tends to become biased against the accused, and that the desire to justify the confidence of the authorities in his skill as a detective may, consciously or unconsciously, give his testimony a color favorable to the prosecution, we are satisfied that the learned trial court directed the attention of the jury to this possibility with respect to the testimony of the investigators in such a way that the defendant cannot fairly complain. We think that the portion emphasized by the appellant himself clearly and as fairly as the defendant could legally require warned the jury to scrutinize this class of evidence with care, and, if they believed bias existed, to discount the testimony accordingly. See Com. v. Mason, 135 Mass. 555;Com. v. Ingersoll, 145 Mass. 231, 13 N. E. 613.

Assignments 6 and 7 relate to the introduction of the bottle alleged to have been sold and the instructions of the court to the effect that the jury were at liberty to take the exhibit with them to the jury room, and that “it is to be taken into consideration by you in arriving at your verdict in this case, and you shall give it such weight as you deem it entitled to under the evidence and these instructions.” No authorities are cited in support of the assignment. It is said that the jury could not derive any assistance from the presence of the exhibit unless the contents were tasted, smelled, or imbibed by the members for the purpose of determining whether the liquid was intoxicating; that upon this point jurors could not be cross-examined, etc.

[3] The exhibit had on it certain identification marks, put thereon by the chemist who analyzed the contents, and by the investigators. The chemist who analyzed the liquid stated that it had an alcoholic content of 55.9 per cent. and other witnesses testified that the liquid was intoxicating. There is no dispute on that point. We do not think that prejudicial error was committed in permitting the jury to take this exhibit to the jury room. It was proper to permit them to examine it, with all its marks of identification. The instruction is not open to the construction that the jurors were authorized to drink or taste the contents. The bottle was sealed when introduced; it is sealed still. It is evident that the jury neither smelled nor tasted the contents. The pint bottle, as it appears in the record, is sealed and approximately half filled with a liquid which the unanimous and undisputed testimony shows to be intoxicating. Generally it is not error to permit jurors to inspect, during their deliberations, exhibits of personal property introduced in the case, where it does not appear that such exhibits were “handled or used” in a manner inconsistent with the evidence. 12 Cyc. 677. See section 7624, C. L. 1913, and Rolette State Bank v. Minnekota El. Co. (N. D.) 195 N. W. 6. There is nothing whatever to indicate that any improper use was made of the exhibit by the jurors during their deliberations. The jury were not advised that members could taste, smell, or drink the contents; and there is no evidence, hint, or suggestion that the exhibit was, in point of fact, misused by them. We are satisfied the error, if any, in admitting the exhibit or in the instructions pertaining thereto, was entirely without prejudice.

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