State v. Poull

• Decision Date: 20 November 1905
• Citation: 105 N.W. 717,14 N.D. 557
• Parties: STATE v. POULL.
• Court: North Dakota Supreme Court

14 N.D. 557

105 N.W. 717

STATE

v.POULL.

Supreme Court of North Dakota.

Nov. 20, 1905.

Syllabus by the Court.

On a trial for the offense of maintaining a nuisance in violation of section 7605, Rev. Codes 1899, under an information charging the maintenance in a certain frame building on certain described lots, evidence that a nuisance was also maintained in another building on the same lots is not relevant to the issue.

Where the evidence tends to show that two independent offenses were committed under such circumstances, it is prejudicial error to refuse to compel the state to elect which transaction it will rely on for conviction before the defendant offers any evidence in his defense.

It is discretionary with the trial court at what stage of the trial it will compel such election up to the time when the state rests its case in the first instance.

In informations charging the keeping and maintaining of nuisances in violation of section7605, Rev. Codes 1899, the information should particularly describe the place where the nuisance is maintained before abatement proceedings can be based on a conviction thereon.

The word “place,” as used in Rev. Codes 1899, § 7605, means the particular building or apartment where the unlawful sale is made or the intoxicating beverages are kept for sale.

Appeal from District Court, Pierce County; John F. Cowan, Judge.

John Poull was convicted of maintaining a nuisance, and appeals. Reversed.

L. N. Torson and A. M. Christianson, for appellant. C. N. Frich, Atty Gen., for the State.

MORGAN, C. J.

The defendant was convicted of the offense of keeping and maintaining a nuisance in violation of the provisions of section 7605, Rev. Codes 1899. The information alleges the maintenance of such nuisance between January 1, 1904, and December 10, 1904, and that defendant “did * * * keep a place, to wit, a certain frame building situated on lots 16 and 17 * * * of Rugby, Pierce county, N. D., * * * in which place intoxicating liquors were * * * kept for sale, and in which place persons were * * * permitted to resort * * * for the purpose of drinking intoxicating liquors, * * * and in which place intoxicating liquors were * * * sold as a beverage,” etc.

It appears from the evidence that there are two buildings on the lots in question. On the front part thereof is the building in which the defendant lived, and on the rear portion is a barn. The two buildings are not connected together in any way. The evidence tends to show that the defendant sold liquors in each of said buildings, and permitted persons to resort to each of these buildings for the purpose of drinking intoxicating liquors during the time covered by the information, and this evidence would sustain a conviction for maintaining a nuisance at each of said places during the time charged. The evidence concerning sales or keeping for sale at the barn was objected to at the trial as irrelevant, and not within the allegations of the information. At the close of the testimony for the state defendant moved that the state be compelled to elect whether it would rely for a conviction on the evidence concerning sales at the barn or at the residence. This motion was denied and duly excepted to, and is now assigned as error. We think that the motion should have been granted. The information charged the maintenance of the nuisance at one building, and that cannot be held to be two buildings not connected together, but, on the contrary, wholly disconnected and independent. A nuisance is maintained by keeping a place for the purposes named in section 7605, Rev. Codes 1899; that is, by selling liquors at a place or keeping it there for purposes of sale, or permitting persons to resort to such place for the purpose of drinking intoxicating liquors. Under this section, the word “place” is restricted in its meaning, and cannot be construed to mean all buildings on a particular lot, when not shown to be united in some way. Two buildings on one lot are not necessarily one place, and in this instance constituted two places, within the rule of State v. Nelson (N. D.) 99 N. W. 1077, where the word “place” was defined as follows: “The word ‘place,’ as used in section 7605, Rev. Codes 1899, means the particular room, tenement, or apartment wherein the unlawful business is done or the liquor is kept for sale or sold.” Evidence as to sales and keeping for sale in the two buildings was therefore in reference to two separate and independent offenses. Had the information charged the maintenance of nuisances in these two buildings, it would have been objectionable and subject to demurrer, as charging two offenses in violation...