State v. Gordon

• Decision Date: 08 November 1915
• Citation: 32 N.D. 31,155 N.W. 59
• Parties: STATE v. GORDON.
• Court: North Dakota Supreme Court

32 N.D. 31

155 N.W. 59

STATE

v.GORDON.

Supreme Court of North Dakota.

Nov. 8, 1915.

Syllabus by the Court.

The remedy against public prejudice existing throughout a county or judicial district created by the publication of a newspaper article is a motion for a change of venue, and not for a continuance.

Proof that prejudice exists or that a derogatory article has been published in one of the cities of a county is not proof that a fair trial cannot be had in the county at large, or that such county as a whole is prejudiced, and is not therefore sufficient to entitle one to a change of venue.

In order to justify a change of venue on account of the excitement of public prejudice it must be shown that such excitement or public prejudice is such that its natural tendency will be to intimidate or swerve the jury, and as the court in which the case is pending can much better determine the propriety of a postponement on this ground than the appellate court it requires a very strong showing to induce the upper court to interfere.

Prejudice or fear on the part of the trial judge on account of the publication of a newspaper article cannot be presumed where the record shows that the rulings of such judge were eminently fair.

The mere fact that a newspaper article has been published, in relation to a case under consideration, and contains misstatements, does not itself disqualify a juryman, even though he may have read the same. Newspaper reports are ordinarily regarded as too unreliable to influence a fair-minded man when called upon to pass upon the merits of a case in the light of evidence given under oath, and a juror, although he may have formed an opinion from reading such reports is competent if he states that he it without prejudice, and can try the case impartially according to the evidence, and the court is satisfied that he will do so.

The appellate court will not hold that a trial judge abused his discretion in refusing a continuance in a criminal case on account of the publication of newspaper articles, which it is claimed may have affected the judgment of the jury, where it affirmatively appears from the evidence in the case that the jury could not have honestly or intelligently returned any other verdict than the one which it did return.

The appellate court will not set aside a verdict of conviction on account of the fact that newspaper articles were published which may have influenced the jurymen, where there is no showing that an impartial panel or impartial talesmen could not have been obtained, or that defendant was denied his privilege of examining the jurymen, on the voire dire and of thus showing their prejudice and protecting his rights.

Where a person is charged with the offense of unlawfully keeping intoxicating liquor for sale, evidence of sales is admissible as a circumstance tending to prove the crime charged.

The delivery book of an express company in which various consignments of liquor were receipted for by the defendant is admissible in evidence in a prosecution for unlawfully keeping intoxicating liquor for sale, and in spite of the fact that the original bills of lading or shipping bills were not introduced, where the signature of such defendant appears in such book as a receipt for such liquor and is proved to be his.

The signature of the defendant in a criminal action which is made by him in open court and without objection is admissible in evidence for comparison, and in order to prove the genuineness of other handwriting claimed to be his.

Where, in an action for the unlawful keeping for sale of intoxicating liquor as a beverage, proof is made that liquor was on several occasions delivered to customers at the shop of the defendant, it is immaterial that the liquor itself was stored at some other place.

The receipt of large quantities of liquor is at least some evidence of the receipt of such liquor for unlawful purposes.

No error is committed in a prosecution for the unlawful keeping for sale of intoxicating liquor in allowing the express agent who delivered the goods to testify as to the meaning of abbreviations in his receipt book, such as “Liq.,” “Cs.,” and “Bx.”

Appeal from District Court, Williams County; T. E. Fisk, Judge.

F. L. Gordon was convicted of unlawfully keeping intoxicating liquors for sale, and appeals. Affirmed.Joseph Cleary, of Williston, for appellant. Wm. G. Owens, of Williston, State's Atty., of Williams county, and Henry J. Linde, Atty. Gen., Francis J. Murphy and H. R. Bitzing, Asst. Attys. Gen., for the State.

BRUCE, J.

This is an appeal by the defendant from a conviction on the charge of “unlawfully keeping for sale, barter, and gift, intoxicating liquors as a beverage, between the 26th day of June, 1914, and the 31st day of December, 1914.

The information was filed on January 5, 1915, and during a term of the district court, the preliminary examination being had on January 2, 1915, at which time the defendant was bound over to the next term of the district court. Prior to the time of the present trial and at the same term of court the defendant had been tried on and acquitted of the charge of having committed the offense of unlawfully selling and giving away intoxicating liquors. It also appears that in the case at bar, very much the same evidence was necessarily introduced as in the former case, expecially in relation to alleged sales; the sales being sought to be proved in the former case for the purpose of proving the direct charge of unlawfully selling intoxicating liquors, while in the present case they were introduced as tending to show the unlawful keeping for sale.

The first point on which defendant relies for a reversal of the judgment is that the court erred in refusing to set aside the information on the ground that the complaint which was filed on the preliminary examination was based merely on information and belief. The complaint, however, does not appear in the record on appeal, nor any record of any ruling of the court on the motion, nor does counsel make any argument upon the question in his brief. We therefore cannot consider it.

[1][2] The next point raised is that the court erred in refusing to grant a continuance of the case upon the following affidavit:

State of North Dakota, County of Williams–ss.:

F. L. Gordon, being first duly sworn, upon his oath says: That he is the defendant above named, that he had a preliminary examination in the above-entitled action on January 2, 1915, and was bound over to the next term of the district court on said date. That he had no knowledge or information that he was to be tried on the charge herein stated at this term of court until so informed by his attorney on January 5, 1915. That affiant was tried for the same or a similar criminal offense at the present term of court on December 15-16, 1914, and that at said trial about 20 of the present jury panel were called and examined as to their qualification as jurymen, and several were excused, and twelve of the present panel of jurymen tried the issue, and that affiant was acquitted. That there are two newspapers published in Williston, with a wide circulation in the county of Williams and city of Williston, namely, the Graphic and the Williston Herald. That the Williston Herald purported to give an account of the proceedings and some of the incidents connected therewith in its issue on December 17, 1914, and that a copy thereof is herewith attached and marked Exhibit A. That the Williston Graphic in its issue of December 17, 1914, purported to give an account of said trial, and that the same is herewith attached and marked Exhibit B. That affiant on information and belief alleges that said article in Exhibit B was copied in the Grand Forks Herald and Bismarck Tribune, daily papers, each with a large circulation in this county, and was also copied in the daily papers in the cities of St. Paul and Minneapolis in the state of Minnesota, and in some of the Eastern daily papers. That said report is untrue in many particulars and has a tendency to and did ridicule this defendant and was published as affiant believes with the intent and purpose of ridiculing the jury and coercing said jury by creating a public sentiment against the jury, and their decision in the case above referred to. Affiant further alleges on information and belief that a campaign has been inaugurated against him for the purpose of influencing public sentiment against him, and preventing him from having a fair trial at the present term of this court. That it is generally represented in Williston that affiant has received shipments of 24 pints of whisky every day since the jury acquitted him, and that he has sold a large amount of whisky and has offered to sell whisky to police in the city if they came along, all of which statements or rumors are untrue. Affiant further alleges that he is a man of limited means, that his financial resources were exhausted in the trial above mentioned, and that he is without money or means to employ such council as he desires for the trial at this term of court. That he verily believes that it would be so difficult as to be practically impossible to secure a jury to give him a fair and impartial trial from the present panel and is informed that the selection of a jury would entail very large expense to this county and to himself for per diem of his attorney and witnesses. Affiant further alleges that he has been using intoxicating liquors to excess for a long time last past, that since his former trial on December 16, 1914, he has been making an effort to quit using intoxicating liquors and has placed himself under the hands of a physician for treatment. That he is advised by his physician and knows from personal knowledge that his heart action is very bad, and believes that he is neither in a physical nor mental condition to undergo the worry and strain of a trial at this term of the court. Affiant further alleges and believes that...