State v. Kruse

• Decision Date: 23 December 1909
• Citation: 124 N.W. 385,19 N.D. 203
• Parties: STATE v. KRUSE.
• Court: North Dakota Supreme Court

19 N.D. 203

124 N.W. 385

STATE

v.KRUSE.

Supreme Court of North Dakota.

Dec. 23, 1909.

Syllabus by the Court.

Where the prosecution for keeping and maintaining a common nuisance is only against the person, and where the state does not seek an order of abatement of the nuisance or to establish a lien against the premises in which the nuisance was maintained, an information charging the keeping of the place where the forbidden acts are committed is sufficient.

Instructions complained of examined, and held prejudicial to defendant.

Evidence as to who rented the building where the alleged nuisance was maintained was, on motion of the state, stricken out. Held, error.

In cases of conviction the costs of prosecution in criminal actions should be taxed by the clerk the same as in civil actions.

Appeal from Ward County Court; N. Davis, Judge.

George Kruse was convicted of maintaining a common nuisance, and he appeals. Reversed, and new trial ordered.F. B. Lambert, for appellant. Andrew Miller, Atty. Gen., and Dudley L. Nash, State's Atty., for the State.

CARMODY, J.

The defendant was convicted in the county court of Ward county of the offense of keeping and maintaining a common nuisance during the two years immediately prior to February 17, 1908, in violation of the provisions of chapter 65 of the Penal Code (Rev. Codes 1905, §§ 9353-9395), and appeals from the judgment of conviction and the order denying his motion for a new trial. Upon being arraigned he interposed a demurrer to the information upon the following grounds: (1) “That it does not substantially conform to the Code of North Dakota for the year 1905.” (2) “That more than one offense is charged therein.” (3) “That the facts therein stated do not constitute a public offense”–which demurrer was overruled. This ruling is assigned as error but is not argued in appellant's brief.

The description of the place in the information is as follows: “A saloon in a building situated in the city of Minot, in said county and state.”

John J. Lee, sheriff of Ward county, testified: That he knew the defendant. Arrested him at the Minot Hotel in the city of Minot, Ward county, N. D., in the evening between 8 and 9 o'clock. Saw him behind the showcase. After the arrest the sheriff compelled defendant to open a box in the kitchen, out of which the sheriff took part of a barrel of Val Blatz beer. There was a padlock on the box. The sheriff told the defendant to open it, and defendant said he would get the keys. He walked out, and the sheriff went with him. Defendant then came back, took the keys out of his pocket, and opened it. The box from which the beer was taken was built like a counter, with a cover and a table cloth over it. There was room for a couple of barrels. There was only one barrel there, and it was pretty near full. About a dozen bottles had been taken out. The bottles were branded “Val Blatz beer.” The sheriff arrested the defendant on the 22d day of December, 1907. Had no search warrant; had a warrant for defendant. Defendant told the sheriff that he could look elsewhere in the building. Defendant opened the box himself.

Thomas Lacy testified: That he resided at Minot for 14 years. Knew the defendant for about 2 1/2 years. Knew him during the year 1907. He was running the Minot Hotel. Lacy boarded there for a while in November, 1907, before defendant was arrested. Bought meal tickets from him. Bought beverages from the defendant, probably in November. Bought them in the rear end of the hotel. The beverage was of a kind of reddish color. It looked like beer; was labeled “Peerless beer.” Bought the same beverage from the defendant in the same hotel several times. Paid him 35 cents a bottle for it. He handed out the beverage personally. Lacy probably drank out of bottles and glasses. Defendant pulled the caps off the bottles and delivered them to Lacy personally. This occurred in the Minot Hotel, Ward county, N. D.

W. J. Carroll testified: That he lived in Minot for 21 years. Knew the defendant for about a year. Was in the Minot Hotel during the year 1907. Saw the defendant there. Carroll went there to get change, eat meals, and get something to drink. He got beer from the defendant; could not tell how many times; once or twice a week, and maybe more; paid the defendant 35 cents a bottle, and he delivered the beer to Carroll personally. This was in the room off the kitchen. Carroll thinks defendant went in the direction of the kitchen to get the beer; sold it by the bottle. There were some chairs there. Defendant delivered it to them. Carroll was usually there once or twice a week, and again for a whole week he would not be there. Ordinarily he paid the defendant for the beer. Once or twice the defendant treated to beer. Carroll was in there and drank beer during August, September, and October, 1907; got the beverage out of beer bottles. Some of them were labeled “Blatz” and some “Gund's Peerless.”

W. S. Shaw testified: That he lived in Minot for about seven years. Knew the defendant and knew his hotel. Could not swear that he bought anything to drink in the Minot Hotel during the summer. He was in there with other parties a time or two and drank with them; got the stuff in bottles. It looked like beer and tasted like beer. They paid defendant for it. Defendant handed out the bottles himself and took the money. This was in August, September, or November, 1907.

Section 13 of our prohibition statute (chapter 110, p. 321, Laws 1890) declares that “all places where intoxicating liquors are sold, bartered or given away, in violation of any of the provisions of this act, or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or where intoxicating liquors are kept for sale, barter or delivery in violation of this act, are hereby declared to be common nuisances,” and it is further provided that the owner or keeper of such place shall, upon conviction thereof, “be adjudged guilty of keeping a common nuisance.” The selling of intoxicating liquors contrary to the provisions of this act does not constitute the offense, nor does the keeping of intoxicating liquors for sale contrary to the provisions of this act constitute the offense. Neither is the offense committed by permitting persons to resort to the place for the purpose of drinking intoxicating liquors as a beverage. They are evidences of the offense. It is keeping the place where these things, or some of them, are done, that constitutes the offense. Proof of keeping by the defendant, and that any one of the prohibited acts was done by the defendant in such place during such keeping, would make the offense complete. State v. Dellaire, 4 N. D....