State v. O'Neal

• Decision Date: 10 December 1909
• Citation: 124 N.W. 68,19 N.D. 426
• Parties: STATE v. O'NEAL.
• Court: North Dakota Supreme Court

19 N.D. 426

124 N.W. 68

STATE

v.O'NEAL.

Supreme Court of North Dakota.

Dec. 10, 1909.

Syllabus by the Court.

Where a complaint in justice court on which the accused is held to answer in the district court does not allege the keeping and maintenance of the nuisance as of a second offense, the state's attorney may, under section 9792, Rev. Codes 1905, file an information in the district court for the alleged offense charging it as a second offense.

Where the complaint in justice court on which the accused is held to answer in the district court alleges that he kept and maintained a nuisance in “a one-story log and frame building on a certain farm upon which the said Thomas O'Neal then and there resided and near the east shore of Lake Metigoshe, in Bottineau county, North Dakota,” the state's attorney may file an information in the district court for that offense as having been committed in a building situated on a specifically described tract of land.

Where the information charges a liquor nuisance to have been maintained in a building on the “northwest quarter of the northwest quarter of section 1, in township 163, range 76, Bottineau county, North Dakota,” it is error to admit evidence that such nuisance was maintained at a place outside of said described tract of land.

Where the information alleges that the accused kept and maintained a liquor nuisance in a certain described building on a specifically described tract of land, it is error to instruct the jury that he may be convicted if shown to have committed that offense at any other place within the county, notwithstanding the specific allegation of the information.

Where the state's attorney attempts to prove the maintenance of a liquor nuisance as a second offense, and fails to do so, and the jury is expressly cautioned to disregard such offer or evidence it was not error nor misconduct for the state's attorney to offer such proof.

Appeal from District Court, Bottineau County; Goss, Judge.

Thomas O'Neal was convicted of keeping a liquor nuisance, and he appeals. Reversed.Noble, Blood & Adamson, for appellant. Andrew Miller, Atty. Gen., and Alfred Zuger and C. L. Young, Asst. Attys. Gen., for the State.

MORGAN, C. J.

This is a criminal prosecution against the defendant for keeping and maintaining a common nuisance contrary to the provisions of the prohibition law. The complaint under which the defendant was arrested described the place where the nuisance was maintained as “a one-story log and frame building on a certain farm upon which said Thomas O'Neal then and there resided, and near the east shore of Lake Metigoshe, in Bottineau county, North Dakota.” The defendant was bound over to the district court after proceedings before a justice of the peace, at which the testimony was not reduced to writing. In the district court, the state's attorney filed an information against the defendant for keeping and maintaining a common nuisance, and the place was described in the information as “a one-story log and frame building situated on the northwest quarter of the northwest quarter of section 1, in township 163, north of range 76.” In the information, the offense of keeping and maintaining a common nuisance was also stated and alleged to be of a second offense. After the defendant was arraigned under this information, he moved to quash the same on the alleged ground that he had not received a preliminary examination on the charge set forth therein, and that there had not been any preliminary investigation by the state's attorney in regard to the commission of any other offense shown by the testimony before the justice of the peace, pursuant to the provisions of section 9792, Rev. Codes 1905. These motions were each denied, and the defendant excepted to the denial. After the jury was impaneled and sworn, the state's attorney asked leave to amend the information to the effect that the offense was committed on section 2, and not on section 1, as alleged in the information. The state's attorney then stated to the court that the description of the place in the information was wrong as to range and section. The request to amend was denied by the court, and the trial proceeded. The defendant was convicted of the offense charged in the information, and duly sentenced to four months' imprisonment in the county jail, and adjudged to pay a fine of $300 and costs, and, in default of payment of the fine, that the defendant be imprisoned in the county jail for a further fixed period.

The assignments of error urged in this court are: (1) That the state's attorney filed an information for a different offense than that shown by the complaint in the justice court, under which he was held to the district court. This objection is intended to include the point that the information charged the nuisance to be maintained as a second offense, and that it was charged in the information to have been kept and maintained at a different place. (2) The defendant moved that the jury be advised to acquit the defendant by their verdict at the close of the testimony. Such motion was overruled, and this is now urged as error. The question intended to be raised by this motion is that the evidence shows that the offense was committed on a different subdivision of land than that set forth in the information; in other words, the contention is, on this point, that the information alleges that the nuisance was maintained on a farm situated in section 1, range 76, and the record shows that the offense was not committed at a place in range 76, or in section 1, if committed at all. (3) Errors of law in relation to the introduction of evidence as to the keeping and maintaining of the nuisance. The question intended to be raised by this assignment is that it was prejudicially erroneous to receive any evidence as to the commission of the offense in any other locality or place than in section 1, range 76. (4) The court erred in charging the jury that, if the evidence showed the defendant to have kept and maintained a nuisance within the county of Bottineau, he should be found guilty, notwithstanding the fact that the information charged the nuisance to have been maintained on the northwest quarter of the northwest quarter of section 1, township 163, north of range 76.

As to the claim that the statement in the information constituted a different offense than the one set forth in the complaint in the justice court, there is no merit. The elements of the offense charged in the complaint, and those constituting the offense charged in the information, are the same. There is no additional act necessary to be proved or charged as to the offense charged in the information and that charged in the complaint. The allegation that the prosecution is for a second offense goes simply to the punishment, and has nothing to do with the constituent elements of the crime. Section 9792, Rev. Codes 1905, permits the state's attorney to file an information for a different offense than the one charged in the complaint under certain circumstances, but the offense for which the defendant was informed against in this case was not a different offense than that described in the complaint. So far as the description of the place where the nuisance is alleged to have been kept the description in the information more specifically locates the place. In the complaint, the place was only generally described, and the fact that the subdivision of land on which the nuisance was located was specifically described in the information does not make the offense different. In State v. Rozum, 8 N. D. 548, 80 N. W. 477, this court has passed on both of these contentions adversely to the claims of the appellant. Further, defendant was not found guilty of keeping and maintaining a nuisance as a second offense in this case. The court withdrew from the jury any consideration of the former charge and prosecution, and cautioned them that the same was not before them. There was,...