State v. Hall

• Decision Date: 03 December 1914
• Citation: 149 N.W. 970,28 N.D. 649
• Parties: STATE v. HALL.
• Court: North Dakota Supreme Court

28 N.D. 649

149 N.W. 970

STATE

v.HALL.

Supreme Court of North Dakota.

Dec. 3, 1914.

Appeal from District Court, Burleigh County; W. L. Nuessle, Judge.

Isham Hall was convicted of keeping and maintaining a common nuisance, and appeals. Reversed, and new trial ordered.

*970T. R. Mockler, of Bismarck, for appellant. Andrew Miller, Atty. Gen., Alfred Zuger, Asst. Atty. Gen., and H. R. Berndt, State's Atty., of Bismarck, for respondent.

PER CURIAM.

Appellant was convicted of the offense of keeping and maintaining a common nuisance and has appealed from the judgment of conviction. His fourth assignment of error challenges that portion of the instructions to the jury as follows:

“So if, in this particular case, gentlemen of the jury, you should first determine to your satisfaction beyond a reasonable doubt that a common nuisance was in fact kept at the time and place charged in the information, and you should further be satisfied beyond a reasonable doubt that this defendant in fact did keep the same, or aid or assist the owner or proprietor or keeper thereof in keeping it in any way, whether by acting for him in the sale of intoxicating liquors thereon or otherwise, then you should find this defendant guilty regardless of his particular interest in the business there being carried on.”

Following the recent decision of this court in State v. Dahms, 149 N. W. 965, which is controlling of the case at bar, such instruction constituted prejudicial error, necessitating a new trial.

We deem it unnecessary to consider the other assignments of error, as it does not appear that the alleged errors there complained of will arise on another trial.

Judgment reversed, and the cause remanded for a new trial.

BURKE, J.

I concur in this opinion only because it is controlled by State v. Dahms.