State v. Johnson

• Decision Date: 26 February 1958
• Docket Number: Cr. 281
• Parties: STATE of North Dakota, Respondent, v. Herbert C. JOHNSON, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 209

88 N.W.2d 209

STATE of North Dakota, Respondent, v. Herbert C. JOHNSON, Defendant and Appellant.

Cr. 281.

Supreme Court of North Dakota.

Feb. 26, 1958.

Syllabus by the Court

1. Where the legislature under the police power of the state has clearly indicated its policy and intent to supervise and control a licensed business affecting the moral welfare of its people, such as liquor establishments and public dancing places, to eliminate and minimize the public evils that may surround or be associated with such licensed businesses, a violation of a statute governing the conduct of public dancing places by the employees of the owner or proprietor thereof, imposes a criminal responsibility upon such owner or proprietor for the acts of his employees in the scope of their employment.

2. The criminal offense specified in the provisions of Section 53-0210 NDRC 1943 is a crime because prohibited by law and the commission of such crime involves no criminal intent or guilty knowledge.

3. The word 'guardian' as used in Section 53-0210 NDRC 1943 refers to a person who occupies under the law the relation to a minor which is created by natural law between a parent and child or which is created by order of court.

4. A chaperone, escort, neighbor, or adult friend who may accompany and supervise a minor at a public dance, or an arrangement between the parents of a minor authorizing the owner or proprietor of a public dancing place to admit and supervise a minor at a public dance are not within the contemplation of the meaning of the word 'guardian' as used in Section 53-0210 NDRC 1943.

5. Where, as in the case at bar, the essential and material facts are not in dispute, and are conceded by the testimony of the defendant, character evidence has no probative function and is not admissible, as it cannot be set up merely in excuse of the commission of the crime. Where such evidence is received without objection its reception and instructions thereon are not prejudicial to the rights of the defendant as the evidence was beneficial rather than harmful to his cause.

6. 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 and at the close of the trial, for while the trial court may advise the jury to return a verdict of not guilty, the jury is not bound by such advice. Section 29-2137 NDRC 1943.

Cupler, Tenneson & Serkland, Fargo, for appellant.

Leslie R. Burgum, Atty. Gen., Lyle Huseby, State's Atty., Fargo, for respondent.

JOHNSON, Judge.

The defendant, Herbert C. Johnson, appeals his conviction for violating Section 53-0210 NDRC 1943, under which he was found guilty, as the owner and proprietor of Johnson's Barn, a public dancing place, for admitting to a dance on December 28, 1956, boys and girls between the ages of 14 and 17, unaccompanied by parent or guardian.

The defendant made a motion for a new trial. The motion was denied. He appeals from the judgment of conviction and the order denying his motion for a new trial. He bases his appeal on 29 alleged errors of law and also asserts that the evidence is insufficient to convict the defendant in that he did not admit the minors; that they were accompanied by guardians within the meaning of the statute. It is unnecessary to detail the contents of the alleged errors, as the determination of two principal questions involved in this action will dispose of most of them. Errors 1, 2, 12 and 13 have been abandoned and are not argued on this appeal.

The two fundamental questions for decision involve whether or not under the statute in question the defendant is liable criminally for the acts of his employees, and whether or not the minors who attended the dance on the night in question were accompanied by a guardian within the meaning of the statute. Error 25 relates to the instructions of the court upon evidence received without objection as to the good character and reputation of the defendant. Errors 28 and 29 are predicated upon the refusal of the court to dismiss the state's case at the close of its presentation of evidence, and at the close of the trial.

Section 53-0210 NDRC 1943, under which the defendant was convicted, provides:

'Admission of Minor to Public Dance Prohibited. No proprietor, lessee, manager, nor employee of any proprietor, lessee, or manager of any hall, room, pavilion, bowery, platform, or other structure in or to which the public generally is invited to participate by paying an admission fee in money or other token of value shall admit, while dancing is practiced in or at such place, any person under the age of eighteen years unless such person is accompanied by a parent or guardian.'

The evidence is undisputed that the defendant, Herbert C. Johnson, did not personally admit any of the minors mentioned to his dance on December 28, 1956. They were admitted by some of his employees, unknown to the state. It is also undisputed that the defendant was personally present at his public dancing place on the night in question; that he saw several of the minors involved that evening, talked to some of them, and knew that they were there. It is further undisputed that neither he nor the employees that admitted these minors inquired as to their ages. The defendant admits by direct implication all the essential facts involved in this case.

The first primary question involved in this case is, whether or not, criminal or penal responsibility attaches to the proprietor and owner of a dancing place for the acts of his employees.

It has been determined in many cases that an employer is criminally liable for unlawful sales of intoxicating liquor made by his clerk or employee in the ordinary line of his duty as such. 30 Am.Jur., Intoxicating Liquors, Section 302, page 415. And according to many other authorities a liquor dealer is criminally liable for unlawful sales by his bartender within the scope of his employment even when made in violation of express directions. The theory of the cases so holding is that the statute places the responsibility of preventing illegal sales upon the licensee. 30 Am.Jur., Intoxicating Liquors, Section 304, page 416. For cases showing the application of these rules see 139 A.L.R., Liquor--Illegal Sale by Employee, pages 313-316.

The question with which we are confronted is whether the rule mentioned is applicable to the facts involved in the case at bar. The trial court so applied it and instructed the jury as follows:

'I think I should advise you, too, that the defendant Herbert Johnson did not personally admit the patrons to this dance; that since he was the owner and proprietor of the place, he is charged with responsibility for the violation of the law, if any, in connection with running the dances at Johnson's Barn even though some of his employees, or helpers, were the ones who actually sold the tickets and admitted patrons to the dance floor, if you find that the defendant was present to supervise the dance.'

Under the statute here in question there is no indication that intent is a necessary element of the offense. It is strenuously asserted that since the statute covers not only the proprietor, but also his employees as well as the employees of a lessee of a public dancing place, the legislature could not have intended that the owner or proprietor of a public dancing place be criminally responsible for the acts of his employees. We believe that the defendant cannot escape guilt by attempting to shift the crime on his employees.

The appellant attempts to distinguish the facts involved in the case at bar with situations in which a defendant has been found guilty of illegal sales of intoxicating liquors made by his employees to minors. He does so on the theory that the statutes dealing with the liquor business and the unwholesome or evil influences that surround and stem therefrom are different from those surrounding or associated with the public dancing places, that therefore, the rule as to illegal sales of liquor to minors, is not applicable.

The evidence shows that Johnson's Barn was properly operated and well managed when public dances were held therein; that it was clean, well lighted, and the yard and surroundings policed. In spite of that the evidence shows that some fights had taken place at Johnson's Barn; that at times persons had been found at dances carrying a bottle of intoxicating liquor.

Public dances and dancing are closely regulated by this state under its police powers, in apparent recognition of the fact that while public dances and dancing at public dancing places may not be harmful in themselves, there are surrounding such dances or associated with them, possible injurious, unwholesome, influences, and that the object to be sought in regulating these dances is the elimination, or at least a minimization of such influences insofar as possible. Chapter 53-02 NDRC 1943.

The conduct of public dances is only allowed under permit from the governing body of the municipality or organized township and from the county commissioners in unorganized territory. Section 53-0205 NDRC 1943. The governing body has discretion in refusing or granting permits and shall make inquiry and investigation as to the propriety of granting or refusing a permit. Section 53-0206 NDRC 1943. The permit to conduct a public dancing place may not issue for more than one year and is not transferable. Section 53-0203 NDRC 1943. It is apparent from this last section that the issuance of the permit is to be based upon the personal character, integrity and the general reputation of the party to whom it is issued. No person having a permit to hold a public dance or to conduct a public dancing place shall permit at any public dance, or in the vicinity of any public dancing place, an intoxicated person, a prostitute or person of known immorality, or any indecent or immodest dancing. Further it is required that every public dancing place shall be...