State v. Markuson

• Decision Date: 06 December 1897
• Citation: 73 N.W. 82,7 N.D. 155
• Parties: STATE v. NORMAN MARKUSON
• Court: North Dakota Supreme Court

73 N.W. 82

7 N.D. 155

STATE v. NORMAN MARKUSON

Supreme Court of North Dakota

December 6, 1897

Appeal from District Court; Barnes County; Glaspell, J.

Action by the State of North Dakota against Norman Markuson and another to abate a nuisance caused by the keeping and selling of intoxicating liquors in violation of law, in which a temporary injunction was issued, and the state's attorney afterwards filed an affidavit showing that defendant Markuson had been guilty of a contempt of court in that he had violated the injunctional order. A plea of "not guilty" was interposed and a trial had to the court without a jury, defendant was adjudged guilty of contempt and sentenced to one years imprisonment in the state penitentiary. He appeals.

Affirmed.

M Conklin, M. E. Remmen, and W. H. Barnett, for appellant.

The restraining order in this case was broader than the statute was without authority and in excess of the prayer for relief. It enjoined the doing of acts not within the statutory prohibition. Section 7605, Rev. Codes. The order being void it was not contempt to disobey it. 2 High on Inj. 1425; Lester v. Peo., 35 N.E. 387; In re McLain, 68 N.W. 163. Before defendant could be properly convicted for a second offense, the complaint should specifically charge the former conviction and also the judgment entered upon such conviction. Clarke's Crim. Pro. 204; Tuttle v. Com. 2 Gray, 506; Com. v. Harrington, 130 Mass. 35; Reg. v. Willis, 12 Cox Crim. Cases, 192; State v. Adams, 13 At. Rep. 785; Harris v. Com., 107 Mass. 198. Defendant was convicted of a felony without a jury trial in violation of his constitutional rights. Sections 7 and 8, Const. Neither the affidavit or search warrant describe the building or premises to be searched, neither named the owner or person in possession. Such a warrant is void. Cooley Const. Law, 304; Humes v. Tabor, 1 R. I. 464; Com. v. Intoxicating Liquors, 109 Mass. 371; Jones v. Fletcher, 41 Me. 254; Grumon v. Ramond, 6 Am. Dec. 200.

Edward Winterer, States Atty., for respondent.

If the injunctional order was improvidentially issued still a violation of the same would be contempt. 5 Crim. Law, Mag. 178; Sullivan v. Judah, 4 Paige, 442; Stimpson v. Putnam, 41 Vt. 238; Peo. v. Bergen, 53 N.Y. 404; High on Inj. 847; Peo. v. Spalding, 2 Paige 326; Mead v. Norris, 21 Wis. 310; Erie Co. v. Ramsey, 45 N.Y. 637. Only an entire want of jurisdiction will relieve the offending party of contempt. 5 Cr. L. Mag. 185; Matter of Morton, 10 Mich. 208. The description in a search warrant will be sufficiently certain if it is such as would if used in a deed convey specific real estate. Black Int. Liq. 411; State v. Bartlett, 47 Me. 388; State v. Robinson, 33 Me. 564. If the description of the place to be searched is faulty or meagre, that does not invalidate the warrant. Metcalf v. Weed, 19 At. Rep. 1091. The description was sufficient. State v. Minnehan, 22 At. Rep. 177; In re Hougan's Liquors, 18 At. Rep. 279; Meek v. Pierce, 19 Wis. 300; Paquet v. Emery, 32 At. Rep. 881; Peo. v. Hess, 48 N.W. 181.

OPINION

BARTHOLOMEW, J.

In June, 1896, an action in equity was commenced by the assistant attorney general against the defendant Norman Markuson and one Murphy, for the purpose of abating a nuisance which it was alleged the defendants kept and maintained on lot 4 in block 25 of the original plat of the City of Valley City, in Barnes County. The nuisance consisted in keeping a place where intoxicating liquors were sold and kept for sale in violation of the constitution and laws of this state. The action was brought under that portion of § 7605, Rev. Codes, which reads as follows: "The attorney general, his assistant, state's attorney, or any citizen of the county where such nuisance exists or is kept or is maintained, may maintain an action in the name of the state to abate and perpetually enjoin the same. The injunction shall be granted at the commencement of the action in the usual manner of granting injunctions, except that the affidavit or complaint or both, may be made by the state's attorney, attorney general or his assistant upon information and belief; and no bond shall be required; and if an affidavit shall be presented to the court or judge, stating or showing that intoxicating liquor, particularly describing the same, is kept for sale, or is sold, bartered or given away on the premises, particularly describing the same, where said nuisance is located contrary to law, the court or judge must at the time of granting the injunction issue his warrant commanding the officer serving said writ of injunction, at the time of such service, to search diligently the premises and carefully invoice all the articles found therein, used in or about the carrying on of the unlawful business, for which search and invoicing said officer shall receive the sum of ten dollars in addition to the fees now allowed by law for serving an injunction. If such officer upon such search shall find upon such premises any intoxicating liquor or liquors of any kind, he shall take the same into his custody and securely hold the same to abide the final judgment in the action (the expenses for such holding to be taxed as part of the costs in the action;) and such officer shall also take and hold possession of all personal property found on such premises, and shall take and hold possession of such premises and keep the same closed until such final judgment. The finding of such intoxicating liquor or liquors on such premises shall be prima facie evidence of the existence of the nuisance complained of. Any person violating the terms of any injunction granted in such proceedings shall be punished for contempt, for the first offense by a fine of not less than two hundred nor more than one thousand dollars, and by imprisonment in the county jail not less than ninety days nor more than one year, and for the second and every successive offense of contempt by imprisonment in the penitentiary no exceeding two years and not less than one in the discretion of the court or judge thereof. In case judgment is rendered in favor of the plaintiff in any action, brought under the provisions of this section, the court or judge rendering the same shall also render judgment for a reasonable attorney's fee in such action in favor of the plaintiff and against the defendants therein; which attorney's fee shall be taxed and collected as other costs therein, and when collected paid to the attorney or attorneys of the plaintiff therein; provided, if such attorney is the state's attorney such attorney's fee shall be paid into the county treasury as in § 7603 provided. In contempt proceedings arising out of the violation of any injunction granted under the provisions of this chapter, the court, or in vacation the judge thereof, shall have the power to try summarily and punish the party or parties guilty as required by law. Process shall run in the name of the State of North Dakota. The affidavits upon which the attachment for contempt issues shall make a prima facie case for the state. The accused may plead in the same manner as to an information or indictment, in so far as the same is applicable. Evidence may be oral or in the form of affidavits, or both; the defendant may be required to make answer to interrogatories, either written or oral, as in the discretion of the court or judge may seem proper; the defendant shall not necessarily be discharged upon his denial of the facts stated in the moving papers; the clerk of the court shall upon the application of either party, issue subpoenas for witnesses, and except as above set forth, the practice in such contempt proceedings shall conform as nearly as may be to that adopted by the ninetieth rule of the Supreme Court of the United States for proceedings in equity in the circuit courts."

The complaint was in the usual form, and prayed the usual temporary injunction pendente lite, which was issued; and, the affidavit required by the statute being also filed, a search warrant was issued at the same time. The injunctional order, after reciting the preliminary facts enjoined and restrained the defendants, their agents, etc., from using "lot 4 in block 25 of the original townsite of the City of Valley City, Barnes County, N. D.," as a place for keeping or selling intoxicating liquors, or permitting the same to be so used, and contained a further clause, as follows: "And if the sheriff, constable, or marshal, or any other officer, serving or executing the summons, complaint, affidavit for search warrant, search warrant, injunctional order, or any other order of this court, issued in said action, shall take possession of said premises or any part thereof, or of any personal property found in or upon said premises, the defendants, their attorneys, agents and servants, and each of them, are hereby restrained and enjoined from interfering in any way whatever with said premises or personal property, or any part thereof, after such possession is taken, and from entering into said premises so taken possession of, or disturbing in any manner the possession of said sheriff, constable, or marshal or other officer, until the further order of this court." In the search warrant the premises to be searched were described in the same language as in the injunctional order, and the warrant continued: "Now, therefore, you are hereby commanded, at the time of serving the aforesaid injunctional order, bearing even date herewith, to diligently search the premises above described, and carefully invoice all articles found therein, used in or about the carrying on of the business aforesaid; and if, upon such search, you shall find upon said premises any intoxicating liquors of any kind, you shall take the same into custody, and securely hold the...