State v. Miller

• Decision Date: 25 November 1910
• Citation: 20 N.D. 509,128 N.W. 1034
• Parties: STATE v. MILLER.
• Court: North Dakota Supreme Court

20 N.D. 509

128 N.W. 1034

STATE

v.MILLER.

Supreme Court of North Dakota.

Nov. 25, 1910.

Syllabus by the Court.

On a prosecution for the crime of importing into this state intoxicating liquors for sale or gift as a beverage, proof that the defendant did prior to the time set out in the information but within one or two months prior thereto sell intoxicating liquors is admissible only as bearing on the intent with which the act for which the accused is informed against was done.

The charge as a whole states the law correctly. Hence no error was committed in refusing defendant's requests for instructions.

Appeal from Ransom County Court; F. S. Thomas, Judge.

Floyd Miller was convicted of importing into the state intoxicating liquor for sale or gift as a beverage, and he appeals. Affirmed.Chas. S. Ego, for appellant. T. A. Curtis, State's Atty., and Andrew Miller, Atty. Gen., for the State.

CARMODY, J.

Appellant was informed against for the crime of importing into this state intoxicating liquors for sale or gift as a beverage. It appears from the evidence that appellant received one gallon of whisky and one case of beer by express on November 3, 1909, and a consignment of a like kind and quantity on November 5th. Appellant explained the proximity of the second shipment to the first by offering evidence tending to prove that a larger portion of the first consignment was stolen. The prosecution produced one James Hall, who had pleaded guilty to a violation of the prohibition law, and was serving sentence therefor. It was sought by his testimony to show that the defendant had been guilty of violations of the prohibition law during the months of September and October, 1909. The jury returned a verdict of guilty. Judgment was had upon the verdict, from which judgment defendant appeals.

Appellant assigns 12 errors, but they can be classified into two groups–one on the admission of testimony and the other on the court's instructions to the jury. The state relied for a conviction upon the importation of intoxicating liquors for sale or gift as a beverage, and, after the importations of November 3d and 5th were proven, the witness Hall, who had worked for appellant on a threshing rig during the fall of 1909, over the objection of appellant that the evidence was incompetent and irrelevant, in that it tends to prove the commission of another offense than that charged in the information and as calling for a conclusion, testified in substance that he and Miller drove around the country for five or six days with Miller's team with boxes of liquor in the rig; that there was an agreement between him and Miller to go out and sell liquor; that this agreement was made after they got through threshing; that, in pursuance of such agreement, he, Hall, went out and sold liquor; did not know as Miller sold any liquor, could not say whether he did or did not; that appellant paid witness for some liquor; did not know that appellant handed out any boxes to persons, but thought he did. Witness ordered his liquor from Moorhead. It came in his name except one case, which came in appellant's name, with his permission; would not swear that appellant made more than one sale. He either made a sale or drank it himself. On cross-examination the witness testified: That he did not see appellant make a sale; did not see him take any money. The agreement was that witness should do the selling. The agreement was made in September, about the 15th or possibly the 25th; thought they went first to Anselm; did not remember whether they drove back to Lisbon or Sheldon from Anselm; attended a dance at Ed. Thompson's; had liquor with them at the time; did not rememberto whom he sold; did not remember to whom Miller sold; did not see him make a sale. He gave witness some money, but witness did not remember how much. The reason he thought appellant made sales was that he said so. Appellant and witness talked over the amount of sales each had made. They tried to...