State v. McKone

• Court: North Dakota Supreme Court
• Writing for the Court: FISK, C. J.
• Citation: State v. McKone, 31 N.D. 547, 154 N.W. 256 (N.D. 1915)
• Decision Date: 17 September 1915

154 N.W. 256

31 N.D. 547

STATE OF NORTH DAKOTA v. J. R. McKONE

Supreme Court of North Dakota

September 17, 1915

Appeal from the District Court of Burleigh County; Nuessle, J. From a judgment convicting defendant of the crime of unlawfully importing intoxicating liquors for sale as a beverage, he appeals.

Affirmed.

Hyland & Madden, for appellant.

The general rule in respect to the proof of private documents and writings is that before they are admissible in evidence their execution must be proved. 2 Jones, Ev. P 538; Linn v Ross, 16 N.J.L. 55; Francis v. Hazlerig, 1 A K. Marsh. 93; Dunlap v. Glidden, 31 Me. 510; Williams v. Keyser, 11 Fla. 234, 89 Am. Dec. 243; Stamper v. Griffin, 20 Ga. 312, 65 Am. Dec. 628; Equitable Endowment Asso. v. Fisher, 71 Md. 430, 18 A. 808; Baker v. Massengale, 83 Ga. 137, 10 S.E 347; Robertson v. Du Bose, 76 Tex. 1, 13 S.W. 300.

Proof of some collateral offense is generally no proof of the offense charged. State v. Fallon, 2 N.D. 510, 52 N.W. 318.

An official can only certify as to the instrument being a correct copy of the original. The certificate in this case fails to so show. Sykes v. Beck, 12 N.D. 242, 96 N.W. 844.

An officer is not clothed with authority to determine that to which the record or document relates or pertains, or to pass judgment upon it, as to any matter. McQuire v. Sayward, 22 Me. 230.

Such officer cannot make his own statement of what he pleases to say appears by the record. What appears by the record and the record itself must be made known to the court by a duly authenticated copy. English v. Sprague, 33 Me. 440; Jay v. East Livermore, 56 Me. 107; Greeno v. Durfee, 6 Cush. 363; Oakes v. Hill, 14 Pick. 448.

There is no law in this state permitting proof of foreign records, by certified copy. Our statutes relate only to domestic records. Miller v. Northern P. R. Co. 18 N.D. 19, 118 N.W. 344, 19 Ann. Cas. 1215.

Defendant is charged with having imported liquors into the city of B., for illegal sale or gift, and not with having caused the same to be done. Maples v. State, 130 Ala. 121, 30 So. 428; Campbell v. State, 79 Ala. 271; Morgan v. State, 81 Ala. 72, 1 So. 472; Dale v. State, 90 Ark. 579, 120 S.W. 389; Jones v. State, 100 Ga. 579, 28 S.E. 396; Reese v. Newnan, 120 Ga. 198, 47 S.E. 560; Johnson v. State, 63 Miss. 228; Rector v. State, Tex. Crim. Rep. , 90 S.W. 41; Crawford v. State, Tex. Crim. Rep. , 58 S.W. 1006; Anderson v. State, 32 Fla. 242, 13 So. 435; Chinn v. Com. 17 Ky. L. Rep. 1205, 33 S.W. 1117; State v. Johnson, 139 N.C. 640, 52 S.E. 273; State v. Mosier, 25 Conn. 40.

In cases where the keeping and maintaining of a common nuisance is involved, no one except the owner or keeper of such a place can be adjudged guilty of such offense. State v. Dahms, 29 N.D. 51, 149 N.W. 965; State v. Hall, 28 N.D. 649, 149 N.W. 970.

"In charging the jury the court shall only instruct as to the law of the case." The jury are the exclusive judges of the facts. Territory v. O'Hare, 1 N.D. 30, 44 N.W. 1003; State v. Barry, 11 N.D. 428, 92 N.W. 809; State v. Peltier, 21 N.D. 188, 129 N.W. 451.

The possession of a government permit to sell liquors is competent and sufficient to justify a verdict only if the jury are satisfied of defendant's guilt beyond a reasonable doubt. State v. Momberg, 14 N.D. 291, 103 N.W. 566; State v. Kelly, 22 N.D. 5, 132 N.W. 223, Ann. Cas.1913E, 974; State ex rel. Kelly v. Nelson, 13 N.D. 122, 99 N.W. 1077.

The finding of liquors on the premises by any person, other than an officer empowered to make investigation under search warrant, is no evidence of guilt. State ex rel. McClory v. McGruer, 9 N.D. 572, 84 N.W. 363.

The presumption of innocence, in matters of crime, is one of the strongest presumptions known to the law, and the jury should have been so instructed in this case, because the evidence of guilt of defendant was almost wholly of the presumptive kind. Holtan v. Beck, 20 N.D. 5, 125 N.W. 1048; Kadlec v. Pavik, 9 N.D. 278, 83 N.W. 5.

H. J. Linde, Attorney General, and H. R. Berndt, State's Attorney, for respondent.

The term "import" as used in our prohibition law means to bring in not only from a foreign state or country, but into the county, town, or city from outside their boundaries. Arkansas v. Kansas & T. Coal Co. 183 U.S. 185, 46 L. ed. 144, 22 S.Ct. 47; 21 Cyc. 1740.

A bill of lading is both a receipt and a contract of carriage, and as such is open to explanation. It is prima facie evidence of ownership of the property mentioned, in the consignee. Cunard S. S. Co. v. Kelley, 53 C. C. A. 310, 115 F. 678; Delta Bag Co. v. Kearns, 112 Ill.App. 269; Harrison v. Hixson, 4 Blackf. 226.

The instruction that the consignee so importing, receiving, and receipting for goods, may be deemed to have imported them, was entirely proper. White v. State, 153 Ind. 689, 54 N.E. 763; State v. Dahlquist, 17 N.D. 40, 115 N.W. 81; Com. v. Hildreth, 11 Gray, 327; 12 Cyc. 420; 6 Am. & Eng. Enc. Law, 570; Cliquot's Champagne, 3 Wall. 114, 18 L. ed. 116.

The word "tending," in its primary sense, means direction of course towards any object, effect, or result. White v. State, 153 Ind. 689, 54 N.E. 763; Webster's Int. Dict. 1484; 38 Cyc. 125, note 25; Hogue v. State, 93 Ark. 316, 124 S.W. 783, 130 S.W. 167.

In this case the state has never intended or undertaken to prove the commission of other like offenses by defendant. The other incidents, of the existence of which proof was offered, were only for the purpose of identifying or connecting up the defendant with the crime charged, and to show intent. State v. Sweizewski, 73 Kan. 733, 85 P. 800; Goode v. State, 50 Fla. 45, 39 So. 461; Ingram v. State, 84 Am. Dec. 782, and note, 39 Ala. 247; Com. v. Campbell, 7 Allen, 541, 83 Am. Dec. 705; State v. Dalquist, 17 N.D. 40, 115 N.W. 81; State v. Miller, 20 N.D. 509, 128 N.W. 1034.

In the trial of a person charged with maintaining and keeping a common nuisance, copies of the records of the office of the internal revenue collector for the proper district, even though taken by a person other than the custodian of such records, are admissible as tending to show that the defendant is engaged in the business of retail liquor dealer. State v. Nippert, 74 Kan. 371, 86 P. 478; Com. v. Best, 180 Mass. 492, 62 N.E. 748; 6 Decen. Dig. 400 (3) u. 486, 489.

OPINION

FISK, C. J.

The appellant was convicted in the district court of Burleigh county of the crime of importing intoxicating liquors for sale as a beverage contrary to the provisions of § 9763 of the Revised Codes of 1905, Comp. Laws 1913, § 10600. From a judgment of conviction he has appealed, urging fifty-five specifications of error upon which he relies for a reversal.

Most of these specifications relate to rulings on defendant's objections to the admission of testimony and the refusals of the court to strike out answers to questions asked by the prosecution. A few relate to rulings admitting documentary evidence, and the remainder to the giving of certain instructions and the refusal to instruct as requested. The testimony in the main consists of documentary evidence in the form of bills of lading and receipts for payments of freight purporting to cover various shipments of liquors from points outside of this state to defendant at Bismarck. In addition thereto, the state introduced over defendant's objection exhibit "A," being a purported certified copy of the records of the collector of internal revenue at Aberdeen, South Dakota, showing the issuance to appellant of two receipts for special taxes for the business of wholesale and retail liquor dealer, the dates of payment being stated as June 14, 1913, and July 17, 1913, both taking effect from July 1, 1913.

The prosecution of necessity relied largely upon the receipts and bills of lading aforesaid and the inferences to be drawn therefrom. It therefore follows that the question as to the correctness of the court's rulings with reference to such exhibits is of vital importance and consequently deserving of serious consideration. With these observations we proceed to the consideration of such of the specifications of error as we deem worthy of notice.

Appellant's first specification is not argued, and is therefore deemed abandoned. The second specification challenges the correctness of the court's rulings on the following question asked the witness McDonald, agent of the Northern Pacific Railway Company at Bismarck, with reference to exhibit 1: Q. "It shows the original signature of the party to whom the freight was delivered?" This exhibit purports on its face to be a receipt for freight consisting of twenty boxes of bottled liquor delivered November 17, 1913, by the Northern Pacific Railway Company to J. R. McKone as consignee. Standing alone such ruling might have constituted prejudicial error upon some of the grounds urged in the objection thereto, but such errors, if any, are clearly cured in the subsequent testimony of the witness McGattigan, who was assistant cashier of the Northern Pacific Railway Company at its freight house in Bismarck on the date of the transaction, and who positively identified defendant's signature thereon as genuine.

Appellant has grouped defendant's specifications, Nos. 1 to 22 both inclusive and Nos. 33 to 40, both inclusive, and argued them together. They relate in the main to the rulings of the court denying the objections of the defendant to the admission of testimony. We have carefully considered these specifications of error, but find them without substantial merit. They are too numerous to mention in detail. Some of them are not wholly without merit when considered without reference to other portions of the record; but in the light of the entire record we have no hesitancy in adjudging, as we do,...