State v. Kilmer
| Decision Date | 02 July 1915 |
| Docket Number | 1915 |
| Court | North Dakota Supreme Court |
Rehearing denied September 15, 1915.
Appeal from the District Court of Burleigh County; Nuessle, J.
Prosecution for maintaining a liquor nuisance. Judgment for plaintiff. Defendant appeals.
Affirmed.
Mockler & Ullness, for appellant.
A witness whose name is not indorsed on the information cannot be called and allowed to testify for the state, against a defendant on trial for crime, and over his objection, where it clearly appears that the prosecuting attorney knew of such witness before filing the information, and where only one day's notice of intention to call such witness was given. Comp. Laws 1913 § 10631; People v. Hall, 48 Mich. 482, 42 Am. Rep. 477, 12 N.W. 665, 4 Am. Crim. Rep 357; State v. Frazer, 23 S.D. 304, 121 N.W. 790; State v. Matejousky, 22 S.D. 30, 115 N.W. 96; State v. Albertson, 20 N.D. 512, 128 N.W. 1122; State v. Pierce, 22 N.D. 358, 133 N.W. 991; State v King, 9 S.D. 628, 70 N.W. 1046.
Identity of names does not necessarily identify persons. Where a person is on trial for the crime of keeping and maintaining a liquor nuisance, the fact that a government license or permit was issued to a person of the same name as that of the defendant, and such permit is sought to be offered in evidence to prove its issue to defendant, is no proof that the defendant is the same person as the one named in the permit. The identity of the defendant, and his personal relation to the permit, must be established by competent proof. Wedgwood's Case, 8 Me. 75; Com. v. Briggs, 5 Pick. 429; Com. v. Norcross, 9 Mass. 492; Bogue v. Bigelow, 29 Vt. 179; Comp. Laws 1913, § 7920; Sykes v. Beck, 12 N.D. 242, 96 N.W. 844; McGuire v. Sayward, 22 Me. 230; Doe ex dem. Foute v. McDonald, 27 Miss. 610; Martin v. Anderson, 21 Ga. 301; Dillon v. Mattox, 21 Ga. 113; Jay v. East Livermore, 56 Me. 107.
A person may give away intoxicating liquor to another without being guilty of any crime. Comp. Laws 1913, § 10117; 23 Cyc. 181; State v. Hall, 28 N.D. 649, 149 N.W. 970.
The evidence as to times and places should, if anything, make two distinct offenses. The jury was permitted to find the defendant guilty of either of two crimes. Comp. Laws 1913, § 10117; 23 Cyc. 177; 12 Cyc. 631; State v. Kruse, 19 N.D. 203, 124 N.W. 385; State v. Dellaire, 4 N.D. 312, 60 N.W. 988; State v. Rozum, 8 N.D. 548, 80 N.W. 477; State v. Thoemke, 11 N.D. 386, 92 N.W. 480; State v. Winbauer, 21 N.D. 161, 129 N.W. 97.
H. J. Linde, Attorney General, and H. R. Berndt, State's Attorney, for respondent.
A term of court, within the meaning of the law, is a term actually held, and not one that may be held. Rev. Codes 1905, § 9791, Comp. Laws 1913, § 10628; State v. Fleming, 20 N.D. 105, 126 N.W. 565.
A witness whose name is not indorsed on the information may be called by the state, and may testify, where it appears that even though such witness was known by the state's attorney to possess some knowledge concerning the case, yet the materiality of the testimony of such witness was not known to such attorney; and especially where the defendant is given ample notice of the fact that such witness will be called. State v. Pierce, 22 N.D. 358, 133 N.W. 991; State v. Albertson, 20 N.D. 512, 128 N.W. 1122.
To show that one accused of violating the local option law had a revenue license covering certain dates and places, the only evidence admissible is either the collector's book or a certified copy thereof, duly authenticated by him or his deputy. True copies of books of record in the collector's office are admissible. Goble v. State, 42 Tex. Crim. Rep. 501, 60 S.W. 966; Thurman v. State, 45 Tex. Crim. Rep. 569, 78 S.W. 937; State v. Sannerud, 38 Minn. 229, 36 N.W. 447; State v. Peterson, 38 Minn. 143, 36 N.W. 443; McKnight v. United States, 54 C. C. A. 358, 115 F. 972, 61 C. C. A. 112, 122 F. 926; Dillon v. Mattox, 21 Ga. 113; Doe ex dem. Foute v. McDonald, 27 Miss. 610.
Official documents in the departments of the United States government may be proved by certificate of the legal custodian thereof. Comp. Laws 1913, § 7919.
There was no showing that defendant kept intoxicating liquors at his dwelling house for the use of himself, his family, domestic servants, or invited guests. The instructions of the court clearly announced the law of the case upon the question of who is a "keeper of a common nuisance." State ex rel. Kelly v. Nelson, 13 N.D. 122, 99 N.W. 1077; State v. Rozum, 8 N.D. 548, 80 N.W. 477; State v. Ekanger, 8 N.D. 559, 80 N.W. 482; Webster's Int. Dict. 1484; Hogue v. State, 93 Ark. 316, 124 S.W. 783, 130 S.W. 167; White v. State, 153 Ind. 689, 54 N.E. 763; Western Exp. Co. v. United States, 72 C. C. A. 516, 141 F. 28; State v. Flagstad, 25 S.D. 337, 126 N.W. 585.
Proof of a single unlawful sale within the building is sufficient to make out a place kept for that purpose, and therefore a nuisance. State v. Russell, 95 Iowa 406, 64 N.W. 281.
This is an action in which the defendant and appellant was convicted of maintaining a common nuisance in the form of a place in which intoxicating liquors were sold, bartered, or given away as a beverage, and in which place persons were permitted to resort for the purpose of drinking intoxicating liquors as a beverage, and in which place intoxicating liquors were kept for sale, barter, exchange, and delivery as a beverage.
The first assignment of error raises the proposition that the court erred in sentencing the defendant to pay the costs of the action and in default of such payment to stand committed for a certain time. There is no citation of authority, however, in support of this proposition, and we believe that none can be found. Section 10941 of the Compiled Laws of 1913, which is construed in State v. Fleming, 20 N.D. 105, 126 N.W. 565, expressly authorizes imprisonment in the case of nonpayment of the costs of a criminal prosecution, and we know of no constitutional provision that it contravenes. The courts, indeed, have everywhere held that imprisonment as an alternative for the payment of a fine is not an imprisonment for debt, and the same principles apply in the case of costs which are imposed as a part of a fine, and as a penalty for the transgression. Dixon v. State, 2 Tex. 481, 482; Bailey v. State, 87 Ala. 44, 6 So. 398; Morgan v. State, 47 Ala. 34; Re Boyd, 34 Kan. 570, 9 P. 240.
The second assignment of error is that "the court erred in assuming the jurisdiction of the case, for the reason that no proper preliminary examination had been terminated prior to the commencement of the term of court at which this case was tried." It is claimed that the preliminary hearing was held subsequently to the convening of the term of court, and that the information was filed in the district court during the term, and that such procedure was in violation of law. We cannot, however, so hold. There is no pretense that the defendant was not given full time and opportunity to prepare his defense, and the procedure appears to have been in conformity with, rather than in violation of, the constitutional provision that provides that "in criminal prosecutions in any court whatever, the party accused shall have the right to a speedy and public trial." See § 13, Constitution of North Dakota. Section 10628 of the Compiled Laws of 1913 provides that "during each term of the district court held in and for any county or judicial subdivision in this state at which a grand jury has not been summoned and impaneled, the state's attorney of the county or judicial subdivision, or other person appointed by the court, as provided by law, to prosecute a criminal action, shall file an information or informations as the circumstances may require, respectively, against all persons accused of having committed a crime or public offense within such county or judicial subdivision or triable therein." This section certainly seems to contemplate that informations can be filed during, as well as at the beginning of, the term where no grand jury is in session nor called.
The third specification of error states that "the court erred in permitting S. M. Ferris, whose name was not indorsed on the information, to become a witness and give testimony in this case, for the reason that it was known to the state that he was a material witness prior to the filing of the information." There is, however, no merit in this assignment. The state's attorney positively testified that though he had known that the witness had been present at the defendant's place of business on the night of the raid, yet he had no knowledge that the witness had been at any time anywhere else than in the rear part of the premises, guarding the same on the outside, or that he had overheard the conversations which he was afterwards called upon to testify to, and that this information came to him later and immediately before the trial. It is also shown that the attorney for the defendant was given due notice of the state's intention to call this witness.
Section 9794, Rev. Codes 1905, being § 10631, Compiled Laws of 1913, provides that "said state's attorney or person appointed to prosecute shall subscribe his name to said information and indorse or otherwise exhibit thereon the names of all witnesses for the prosecution known to him to be such at the time of the filing of the same, but other witnesses may testify, in behalf of the prosecution, on the trial of said action, the same as if their names had been indorsed upon the information." In the case of State v. Pierce, 22 N.D. 358, 133 N.W. 991, we held that "witnesses whose names are not indorsed on the information may be examined by the state on the trial of a criminal case, when ...
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