State v. Lacy

• Decision Date: 14 February 1927
• Citation: 212 N.W. 442,55 N.D. 83
• Court: North Dakota Supreme Court

212 N.W. 442

55 N.D. 83

STATE OF NORTH DAKOTA, Respondent, v. TOM LACY, Appellant

Supreme Court of North Dakota

February 14, 1927

Appeal fro the District Court of Ward County, Lowe, J.

Affirmed.

L. J Palda, Jr., C. E. Brace, and Robert W. Palda, for appellant.

"The damnable character of the bootleggers' business should not close our eyes to the mischief which will surely follow any attempt to destroy it by unwarranted methods, 'to press forward to a great principle by breaking through every other great principle that stands in the way of its establishment;--in short, to procure an eminent good by means that are unlawful, is as little consonant to private morality as to public justice.' Sir William Scott, The LeLouis, 2 Dodson, Adm. 210, 257, 165 Eng. Reprint, 1464, 1469." Carroll v. United States, 267 U.S. 132, 69 L.Ed. 543, 555.

"The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer had (before the seizure) for belief that the contents of the automobile offend against the law." Ibid.

George F. Shafer, Attorney General, K. E. Leighton, Assistant Attorney General, and H. E. Johnson, State's Attorney for respondent.

"It has long been established that the admissibility of evidence is not affected by the illegality of the means through which the party has been enabled to obtain the evidence. The illegality is by means condoned; it is merely ignored." State v. Pauley, 49 N.D. 488, 192 N.W. 91.

COLE Dist. J. BIRDZELL, Ch. J., and CHRISTIANSON, NUESSLE, and BURKE, JJ., concur. BURR, J., did not participate; Honorable A. T. COLE, Judge of the First Judicial District, sitting in his stead.

OPINION

COLE, Dist. J.

In this case Tom Lacy was convicted of violating the prohibition law and comes here on appeal, alleging several grounds why the cause should be reversed and a new trial granted. At the close of the case when the state rested the defendant also rested and put in no testimony and followed with a motion for an advised verdict, which was denied. He takes exceptions to instructions to the jury and alleges a number of specifications of error as to the ruling on the admission or exclusion of testimony and other matters. The information upon which the defendant was convicted reads as follows, in reference to the charge part:

"That heretofore, to-wit: On the 1st day of December, in the year of our Lord, One Thousand Nine Hundred and twenty-five, at the county of Ward, in said State of North Dakota, one Tom Lacy, late of the said county of Ward and state aforesaid, did commit the crime of engaging in the liquor traffic, committed as follows, to-wit: That at the said time and place the said Tom Lacy did wilfully, wrongfully, unlawfully and feloniously transport in a Ford sedan car intoxicating liquor, to-wit: alcohol, and that at the said time there was in session in Ward county, North Dakota, a regular term of the district court of the fifth judicial district, and a jury in attendance at said court, the Hon. A. G. Burr, Judge, presiding. That the defendant did on the 10th day of November, 1923, plead guilty in the district court of Ward county, North Dakota, to the charge of keeping and maintaining a common nuisance, and that in pursuance to such plea, he was sentenced on the first day of December, 1923, by the said district court to ninety days in jail, $ 200 fine and costs of the said action. That the defendant has served the time so imposed upon him, and has paid his fine and costs."

And then follows the usual allegation that it is contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of North Dakota.

Under the ruling of the trial court the conviction of the defendant was held not to be for a second offense, nor a felony, but merely a conviction for a misdemeanor. When the case was argued before this court, the attorney for the appellant laid stress, among other things, upon the fact that, although the defendant might have had alcohol in the can that was testified to, it might have been alcohol for purposes that the statute permits certain persons to have, if it be of the kind and for the purpose permitted by statute. This, in substance, seemed to present the view of the appellant that the state, in order to prove a case, would have to prove that the alcohol, if it were alcohol, was such as was not among the excepted kinds provided for in the statute or permitted under its several different provisions. In other words, the appellant contends that the burden of the negative is upon the state and not upon the defendant. It may be said, however, that the liquor traffic is an outlaw under the constitution and laws of this state and under the statutes enacted pursuant to the 18th Amendment to the Federal Constitution. So where one is charged with a violation of the prohibitory laws, if, in fact he belongs to any of the excepted classes having liquor for excepted purposes, or the liquors in question are any of the excepted sorts, these are purely defensive matters and the burden is upon the defendant to exempt himself by proof from the penalty that would follow a violation of the law. See State v. McDaniels, 49 N.D. 648, 192 N.W. 974; State v. Schuck, 51 N.D. 875, 201 N.W. 342; State v. Cook, 53 N.D. 429, 206 N.W. 786; State v. Cook, 53 N.D. 756, 208 N.W. 556.

The appellant also alleges several errors in reference to the admission of evidence, which we have carefully examined, and find to be unwarranted.

The motion for an advised verdict was properly denied as an examination of the entire testimony in the trial discloses that it fairly presented a question for the jury to determine as a matter of fact as to whether or not the defendant did have in his possession alcohol in violation of the law of the state.

A motion for a new trial followed in due time which was denied and this also is alleged as error. We have examined the entire record and hold that the motion for a new trial was properly denied. In connection with the argument in this court, the appellant laid great stress upon an alleged assault upon the defendant by the man Wright, who was the principal witness in the case, claiming that he proceeded to take into custody the defendant by assault, and without any warrant or authority for so doing. In connection with this claim the following testimony of Mr. Wright is quoted:

Q. How did you happen to see him?

A. I was going up town from home. I was at the street intersection when I saw the car go past in front of me.

Q. What did you see him do?

A. I recognized him, and he drove up to a curb in front of his house and as he got out of his car I was at the rear of Quale's grocery.

Q. What did you do then?

A. He got out of the car, he had a sweater jacket and under this pocket (indicating) he had a tin can sticking out of the pocket under his left arm.

Q. When was it that you first saw that tin can?

A. As he stepped out of the car at the curb.

Q. About how far were you from him at the time you saw him with this tin can?

A. Well, about thirty feet, maybe thirty-five feet, something like that.

Q. And then what followed?

A. I told him to stop, and he started to run to the house, and I intercepted him when he run to the house and told him I was an officer and wanted that can.

Q. And then what did you do?

This question was objected to by the attorney for the appellant and the attorney asked leave of the court to ask some questions for the purpose of laying a foundation for an objection, which were as follows:

Q. Mr. Wright, you are not the deputy sheriff of this county, are you?

A. No.

Q. You are not a police officer?

A. No.

Q. Did you have any warrant any warrant for Mr. Lacy's arrest or search warrant?

A. No.

Q. Did you have any papers of any kind to serve on him?

A. No, sir.

Q. And by claim of officer, you mean as prohibition agent of the federal government?

A. Yes.

Then the attorney for the appellant again objected to the testimony of the witness Wright, as being incompetent, irrelevant and immaterial, no foundation laid, and on the further ground that the witness was not such an officer as entitled him to stop anyone on foot or to pretend to make any search of the defendant. The objection was overruled, and as we think, properly so. Then the state's attorney continued to inquire as follows:

Q. Go ahead, Mr. Wright, and tell what followed?

A. I grabbed him, threw him to the ground in front of the house and went down. I went down on top of him and I started to take his can away from him.

Q. You had some conversation away from him?

A. I told him two or three times I was an officer and he better stop and deliver the can.

Q. Did he deliver the can to you?

A. No, he did not.

Q. Go ahead and tell what followed?

A. He went down with the can on his left...