State v. Kilmer
| Decision Date | 15 September 1915 |
| Citation | 153 N.W. 1089,31 N.D. 442 |
| Parties | STATE v. KILMER. |
| Court | North Dakota Supreme Court |
Section 10941, Comp. Laws 1913, which authorizes imprisonment in case of the nonpayment of the costs of a criminal prosecution, does not violate either the Constitution of the state of North Dakota or that of the United States.
Section 10628, Comp. Laws 1913, provides that, during each term of the district court at which a grand jury has not been summoned, the state's attorney shall file informations against all persons accused of having committed a crime or public offense, and authorizes the filing of such an information and the trial of the defendant at such term, even though the preliminary examination was held during such term of the court, provided that a reasonable time and opportunity is afforded for the preparation of his defense.
A witness whose name is not indorsed on the information may be examined on behalf of the state in a criminal prosecution, where it is shown that the attorney for the defendant was given due notice of the state's intention to call such witness, and when, prior to the filing of the information, the prosecution, though it was aware that such witness had some knowledge of the occurrence, had no knowledge that his testimony would be in any way material to the issues.
Where one is accused of maintaining a liquor nuisance at a certain place, proof of the issuance to such person of a government license for the sale of intoxicating liquors in the town and state where such nuisance is claimed to have been maintained is admissible, even though the premises described in said license are different from those mentioned in the information, as such evidence tends to show that the defendant was in the business of selling intoxicating liquors.
The presumption that identity of names indicates identity of persons will make admissible in a trial for maintenance of a liquor nuisance a government license for the sale of liquor issued to a person of the same name as the defendant, without preliminary proof of the identity of the person.
A certified copy of the records in the office of the collector of internal revenue relating to the issuance of a liquor license is admissible in evidence in a prosecution for maintaining a liquor nuisance when properly proved, and such record is properly proved when there is attached thereto a certificate by the collector of internal revenue as to its correctness and authenticity.
A statement in a certificate of the collector of internal revenue, which is attached to a certified copy of the record of special taxpayers and registers of his district, does not render the admission of such record reversible error, because it states in substance that the record shows the issuance of United States special tax stamps to the defendant, when the record upon its face shows the same fact.
Appeal from District Court, Burleigh County; Nuessle, Judge.
H. E. Kilmer was convicted of maintaining a liquor nuisance, and appeals. Affirmed.
Mockler & Ulness, of Bismarck, for appellant. H. J. Linde, Atty. Gen., and H. R. Berndt, State's Atty., of Bismarck, for the State.
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.
[1] 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 South. 398;Morgan v. State, 47 Ala. 34;In re Boyd, 34 Kan. 570, 9 Pac. 240.
[2] 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 section 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.
[3] 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, R. C. 1905, being section 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 the prosecution had no knowledge of the witnesses or of their knowledge of anything material to the issues prior to the filing of the information, and in the absence of a showing that the defendant was prejudiced thereby.”
See, also, State v. Albertson, 20 N. D. 512, 128 N. W. 1122. We can see no prejudice in the case at bar.
[4] The fourth assignment of error takes exception to the introduction in evidence of the plaintiff's Exhibit M, which was a certified copy of the record of special taxpayers and registers in the office of the collector of internal revenue for the states of North and South Dakota, which was certified to by James Coffey, collector for such district, and which record showed the payment by one H. E. Kilmer, of 320 Fourth Street North, Bismarck, N. D., of a government tax as a retail malt liquor dealer. The objection to this certificate was that it was incompetent, irrelevant, and immaterial; that it had not been properly identified; that it had not been properly authenticated as provided by law; that there was no law in the state to receive it in evidence, it not being a record of any office of the state of North Dakota, and that, if it were admitted to be the record which it purported to be, it was only a copy or memorandum, not required by law to be kept, and that it did not refer to the premises of this defendant, on which the state attempted to prove the maintenance of a common nuisance, the exhibit showing that the plaintiff's place therein described was 320 Fourth Street North, which was not the property kept at the date alleged in the information; and, further, that there is nothing to show how long the license was in force, or that it was in force at the time of the commission of the alleged offense; also, that the introduction of such certificate would deprive the defendant of his constitutional right to meet the witnesses face to face, and that it was not a document or an authenticated copy of a document required by law to be...
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