State v. Liberman, Cr. No. 36.

• Citation: 229 N.W. 363,59 N.D. 252
• Decision Date: 18 February 1930
• Docket Number: Cr. No. 36.
• Parties: STATE v. LIBERMAN.
• Court: United States State Supreme Court of North Dakota

59 N.D. 252

229 N.W. 363

STATE

v.LIBERMAN.

Cr. No. 36.

Supreme Court of North Dakota.

Feb. 18, 1930.

Appeal from District Court, Towner County; C. W. Buttz, Judge.

Alex Liberman was convicted of keeping intoxicating liquor for sale as a beverage, and he appeals. Affirmed.F. T. Cuthbert, of Devils Lake, and J. J. Kehoe, of Cando, for appellant.

James Morris, Atty. Gen., and Chas. H. Houska, State's Atty., and Lloyd B. Stevens, both of Cando, for the State.

BURR, J.

The defendant was charged with “keeping intoxicating liquor for sale as a beverage” and convicted. He appeals from the order denying him a new trial, and sets forth 33 specifications of error. These may be arranged in three classes dealing with: The admission of testimony; the charge to the jury; and the sufficiency of the evidence.

[1] The alleged errors in the first class concern the time stated in the information. The information says, among other things, “that between the 24th day of August, 1928, and the 30th day of August, 1928, inclusive, at and in the county of Towner * * * one Alex Liberman * * * did then and there wilfully and unlawfully keep intoxicating liquor for sale as a beverage, etc.” Appellant claims the court erred in permitting testimony regarding transactions had on the 24th day of August, 1928, because such day should not be included.

There was no error in this. Under our statute, section 10691 of the Compiled Laws, “the words used in an information * * * must be construed in their usual acceptation in common language, except words and phrases defined by law * * *.” Ordinarily the word “between” excludes the termini. Weir v. Thomas, 44 Neb. 507, 62 N. W. 871, 48 Am. St. Rep. 741. There are times however when the word includes both dates. McGinley v. Laycock, 94 Wis. 205, 68 N. W. 871, 872. It depends largely upon the plain meaning and sense. As said in Kendall v. Kingsley et al., 120 Mass. 94, 95, construing an assignment of rents, “the preposition ‘until,’ like ‘from,’ or ‘between,’ generally excludes the date to which it relates” yet “general rules of construction must yield to the intention of the parties, apparent upon the face of the whole instrument.” In the case at bar we must consider the word “inclusive” in construing “between,” for it is said it was between these dates “inclusive.” Webster says “inclusive” means: “Comprehending the stated limit or extremes, as from Monday to Friday inclusive, that is taking in both Monday and Friday * * * opposed to exclusive.” The Standard Dictionary says: “including the things, times, places, limits, or extremes mentioned.” Had the information said “from August 24 to August 30, inclusive,” both extremes would be included. Using the word “between” instead of “from,” makes no difference. It was not necessary to say “both inclusive” to include both limits. It adds nothing to the meaning. Brooklyn Trust Co. v. Town of Hebron, 51 Conn. 22, was a case where the validity of the notice of a town meeting was in question. The law required the notice to be posted “five days inclusive before the meeting is to be held.” Notice was posted September 26th and the meeting held September 30th. The word “inclusive” was held to include the first day and exclude the last. In Monroe v. Acworth, 41 N. H. 199, 201, there was involved notice of sums expended for paupers “since the 5th day of October, 1858, and up to December 31, inclusive.” The court held the term “inclusive” included the last day and excluded the first. The information says: “Between the 24th day of August and the 30th day of August inclusive,” which, under ordinary construction, includes both limits in harmony with the definition given by lexicographers.

Objections were made to rulings on introduction of testimony, such as: That the question was “leading and suggestive”; that the court failed to strike out testimony as being a conclusion; and immaterial; and that the witness was not qualified to tell whether the liquor smelled like alcohol. We have examined these rulings and find no reversible error.

The charge is said to have six errors. Four relate to the time, the court charging that the jury could take into consideration any sale proved to have been made on the 24th day of August. There was no error in these instructions.

[2] The court defined “reasonable doubt” and said: “What is meant by that term ‘reasonable doubt”’? “Well, just what those words in themselves imply-a doubt that is reasonable, a doubt that you have some foundation in common sense for having in your minds.” Appellant says: “There is no justification in law for the instruction that a reasonable doubt is one with some foundation in common sense,” and that there should have been “another instruction to find out what common sense is.”

The term “reasonable doubt” needs no definition. It means what it says. State v. Morrison, 67 Kan. 144, 72 P. 554, 559;State v. Wilcox, 132 N. C. 1120, 44 S. E. 625, 631;People v. Cox, 70 Mich. 247, 38 N. W. 235, 240;Lipscomb v. State, 75 Miss. 559, 23 So. 210, 212, 230;Barney v. State, 49 Neb. 515, 68 N. W. 636, 638, 639;Lenert v. State (Tex. Cr. App.) 63 S. W. 563, 565. As said in Miles v. United States, 103 U. S. 304, 312, 26 L. Ed. 481, 484, “Attempts to explain the term ‘reasonable doubt’ do not usually result in making it any clearer to the minds of the jury.”

A doubt demanding an acquittal must be a reasonable doubt. A possible or speculative doubt is not sufficient. State v. May, 172 Mo. 630, 72 S. W. 918, 924; McKleroy v. State, 77 Ala. 95, 97. It is not “a mere imaginary, captious, or possible doubt, but a fair doubt, based upon reason and common sense, and growing out of the testimony in the case.” State v. McCune, 16 Utah, 170, 51 P. 818, 819. See, also, People v. Swartz, 118 Mich. 292, 76 N. W. 491;Emery v. State, 101 Wis. 627, 78 N. W. 145, 152. Nor is it a feeling that a conclusion may possibly be erroneous. See State v. Roberts, 15 Or. 187, 13 P. 896, 900. The court told the jury the defendant had to be convinced upon the evidence introduced, and “if you can reasonably account for any facts in this case upon a theory or hypothesis that will admit of the defendant's innocence it is your duty under the law to do so. If you have a reasonable doubt of his guilt you should acquit him.” No reversible error is shown in this.

Appellant says: “In no place in its instruction did the court state to the jury that the intoxicating liquor kept must have been kept for sale as a beverage.” In the charge it is stated that among the material allegations of the information is that “said Alex Liberman * * * did wilfully and unlawfully keep intoxicating liquors for sale as a beverage.” Again the court said: “It is the claim of the state that the defendant was keeping for sale as a beverage in this county and state alcohol.” Further the court said: “I charge you that before you can find the defendant guilty of the crime charged, you must first find from the evidence beyond a reasonable doubt that the defendant did keep intoxicating liquors for sale as a beverage at some time during the period between and including those dates.” Another portion of the charge overlooked by appellant is the statement by the court: “You must be satisfied beyond a reasonable doubt from the evidence in the case that the contents of such can were intoxicating liquors and that the defendant kept the...