State v. Gesell

• Decision Date: 18 May 1917
• Docket Number: No. 20419[4].,20419[4].
• Citation: 162 N.W. 683,137 Minn. 43
• Parties: STATE v. GESELL.
• Court: Minnesota Supreme Court

137 Minn. 43

162 N.W. 683

STATE

v.GESELL.

No. 20419[4].

Supreme Court of Minnesota.

May 18, 1917.

Appeal from District Court, Pennington County; Andrew Grindeland, Judge.

Howard Gesell was convicted of unlawfully selling intoxicating liquor, and from an order denying his motion for a new trial, he appeals. Affirmed.

Syllabus by the Court

One who purchases intoxicating liquor, sold contrary to law, for the purpose of prosecuting the seller for an unlawful sale, does not thereby become an accomplice.

The admission of evidence of other sales, on a trial under an indictment for the unlawful sale of intoxicating liquor, at about the time of the sale mentioned in the indictment, held not error.

Upon a trial for illegal sale of intoxicating liquor, held not error to admit in evidence express receipts as tending to show shipments of liquor to defendant. Chas. E. Boughton, of Red Lake Falls, and O. A. Naplin, of Thief River Falls, for appellant.

Lyndon A. Smith, Atty. Gen., James E. Markham, Asst. Atty. Gen., and Hans O. Kjomme, Co. Atty., of Thief River Falls, for the State.

QUINN, J.

The defendant was indicted, tried and convicted of unlawfully selling intoxicating liquor. From an order denying his motion for a new trial, defendant appealed.

The indictment charges that defendant did on the 11th day of April, 1916, at the city of Thief River Falls, in Pennington county, unlawfully, wrongfully, and willfully sell intoxicating liquor; to wit, one pint of whisky, to one J. F. Delaney, without having a license therefor, etc. Appellant insists that he should be granted a new trial, and as grounds therefor urges 20 or more specific assignments of error, all of which will be considered under a few general propositions.

[1] 1. Appellant insists that the verdict is not justified by the evidence and is contrary to law, in that the verdict is based upon the evidence of the witness, Delaney, who testified that he purchased the whisky in question from the defendant, thereby showing himself to be an accomplice, and his testimony, not being corroborated, is not sufficient to sustain the verdict. It is not disputed but that the witness Delaney was by profession a detective; that he came to the city af Thief River Falls at the request of its mayor to procure evidence against those engaged in the unlawful sale of intoxicating liquor; that upon the trial Delaney appeared as a witness on the side of the state; that he testified, in effect, that he met the defendant upon the street on the morning of April 11, 1916; that after a few friendly words they went to the defendant's place of business, and that after some talk about going across the street for breakfast, witness asked defendant for a bottle of whisky; that the defendant then handed him a pint bottle of whisky, for which he paid defendant 75 cents; that he so purchased such liquor from defendant for the purpose of getting evidence against him.

The question then is: Does one who purchases intoxicating liquor, sold contrary to law, for the express purpose of prosecuting the seller for an unlawful sale, thereby become an accomplice? We answer the question in the negative. State v. Baden, 37 Minn. 212, 34 N. W. 24;State v. Quinlan, 40 Minn. 55, 41 N. W. 299.

It is insisted that section 8477, G. S. 1913, which provides that:

‘Every person concerned in the commission of a crime, whether he directly commits the act constituting the offense, or aids and abets in its commission, and whether present or absent, and every person who directly or indirectly counsels, encourages, hires, commands, induces, or otherwise procures another to commit a...