State v. Grams

• Decision Date: 13 March 1935
• Docket Number: Cr. No. 119.
• Citation: 259 N.W. 86,65 N.D. 400
• Parties: STATE v. GRAMS.
• Court: North Dakota Supreme Court

65 N.D. 400

259 N.W. 86

STATE

v.GRAMS.

Cr. No. 119.

Supreme Court of North Dakota.

Feb. 6, 1935.

Rehearing Denied March 13, 1935.

Syllabus by the Court.

1. Following State v. Stoddard (N. D.) 257 N. W. 479, it is held, there was no error in overruling the challenge to the panel on the ground that the jury was drawn from a jury box containing less than the required statutory number of jurors (Comp. Laws 1913, § 817) and a number less than should be apportioned properly to a city or a subdivision of a county.

2. Where this court, upon the filing of an affidavit of prejudice against the presiding judge, designates another judge to try the case, such judge designated is not disqualified merely because he may have been the presiding judge at the previous term.

3. It is not error for the trial court in a criminal case to refuse to dismiss the case upon motion made at the close of the state's case; nor is it error to refuse to advise the jury to bring in a verdict of acquittal.

4. Where an alleged error sought to be reviewed was not included in the specifications of error upon which the motion for a new trial was based, it cannot be presented to this court for the first time on appeal.

5. Record reviewed, and it is held, no error has been shown in the ruling of the trial court sustaining objections to certain offers of proof made by the defendant.

6. In a prosecution wherein the defendant is charged with the crime of having intoxicating liquors in his possession, the court having properly charged in regard to the burden of proof and presumption of innocence, it is not error for the trial court to charge that whisky and alcohol are intoxicating liquors and that, if these were found in the possession of the defendant at the time and place and in the manner and form charged in the information, it would be the duty of the jury to find the defendant guilty of unlawfully possessing intoxicating liquors.

7. Specifications of error regarding the admission and rejection of testimony have been examined and no error therein has been shown.

8. It is held, that the evidence introduced is sufficient to sustain the verdict.

Appeal from District Court, Ward County; John C. Lowe, Judge.

Reinhold Grams was convicted of unlawfully possessing intoxicating liquors, and he appeals.

Affirmed.

G. W. Twiford, of Minot (Nestos, Herigstad & Stenersen, of Minot, of counsel), for appellant.

R. W. Palda, of Minot, for the State.

BURR, Judge.

The defendant was charged with the crime of having intoxicating liquors in his possession, a verdict of guilty was returned, and the defendant made a motion for a new trial, which motion was overruled. Judgment being entered on the verdict, defendant appeals from the judgment and from the order denying a new trial.

[1] There are twenty-two specifications of error; but we need not set them forth separately. Prior to the impaneling of the jury the defendant raised the same objections as were raised in the case of State v. Stoddard (N. D.) 257 N. W. 479, decided at this term, relative to the jury list and failure to keep the names of the jury box at the maximum number required by statute (Comp. Laws 1913, § 817). The situation is the same as in the Stoddard Case and is governed thereby.

[2] The defendant objected to a trial before Judge Lowe on the ground that this judge had presided at the previous term of court and therefore was disqualified to try this case under the provisions of chapter 111 of Session Laws of 1929. There is no merit in this contention. The statute cited provides that the terms of court shall be fixed by order of the supreme court, “so that no judge shall, without permission of the supreme court, for good cause shown, hold two consecutive jury terms of court in any county in his district.” Judge Gronna, who was presiding at this term, requested Judge Grimson of the Second judicial district to try the case. Defendant filed an affidavit of prejudice against Judge Grimson and this court designated Judge Lowe to try the case. Judge Lowe was not presiding at the term of court. He was acting, not only with the “permission of the supreme court for a good cause shown,” but also at the direction of the court.

[3] It is said the trial court erred in denying the motion to dismiss the case made at the close of the state's case, and refusing to advise the jury to bring in a verdict of acquittal. This court has repeatedly held that no error can be predicated on the refusal to advise the jury to acquit (State v. Wright, 20 N. D. 216, 126 N. W. 1023, Ann. Cas. 1912C, 795;State v. Farrier, 61 N. D. 694, 240 N. W. 872), nor the refusal to grant a motion to dismiss made at the close of the state's case. State v. Albertson, 20 N. D. 512, 128 N. W. 1122.

[4][5] It is said the trial court erred in permitting the state's attorney to add the name of W. L. Bakeman to the information. This objection was not presented to the trial court on the motion for a new trial. It must therefore be considered as waived. State v. Glass, 29 N. D. 620, 151 N. W. 229. However, the record shows that before permitting the name to be indorsed the court made inquiry as to why the name was not placed on the information before it was filed. The court was satisfied with the assurance of the state's attorney that he did not know that Bakeman was a witness at the time he filed the information, and did not know until the day prior to the application. There was no error in this even if the matter could be raised now. Section 10631 of the Comp. Laws permits names of additional witnesses to be indorsed. See State v. Albertson, supra; State v. Marty, 52 N. D. 478, 485, 203 N. W. 679, 682.

[6][7] Appellant urges the court erred in sustaining objections to three offers of proof. The defendant was arrested as the result of a raid on what is known as the Poppy Shop in Minot. The wife of the defendant testified she operated this Poppy Shop, sold soda fountain goods, ice cream, malted milk, coffee, sandwiches, etc., and was “serving meals there at the time for the different employees in the building.” The record shows the shop is in the front sixteen feet of the northwest corner of the building known as the Minot Bakery Building operated by the defendant, and there were entranceways between the two establishments. There were a number of employees in the bakery as well as men working there on repairs. In addition the witness testified she had one woman helping her. At the time of the raid the officers found a pint of alcohol, a small quantity of whisky, and 48 pints of beer in this Poppy Shop and back of the soda fountain.

One offer of proof attempted to show by the defendant's wife that men working in the Minot Bakery had access to the Poppy Shop on April 19, 1933, were permitted to go behindthe soda fountain, and that several of them did so. The second offer of proof attempted to show by this witness that the defendant had nothing to do with the operation of the Poppy Shop. But as to this the wife testified she managed and operated it. The third offer was an attempt to prove by her that at some time prior to the raid she had found intoxicating liquor in the Poppy Shop and that she had taken and destroyed it. The fourth was an attempt to prove by her that the defendant was a baker and at that time was operating...