State v. Severin

• Decision Date: 06 December 1929
• Docket Number: Cr. No. 30.
• Citation: 58 N.D. 792,228 N.W. 199
• Parties: STATE v. SEVERIN
• Court: North Dakota Supreme Court

58 N.D. 792

228 N.W. 199

STATE

v.SEVERIN

Cr. No. 30.

Supreme Court of North Dakota.

Dec. 6, 1929.

Syllabus by the Court.

Under the provisions of section 10145b3 of the Supplement, “any person who shall within this state, manufacture, sell, barter, transport, import, export, deliver, furnish, or possess any intoxicating liquor, shall be guilty of the crime of engaging in the liquor traffic,” possession of intoxicating liquor in this state is a violation of law and it is not necessary that such possession be for the purpose of sale, barter, or gift; the exceptions specified in section 10145b4, permitting the use and possession of grain or ethyl alcohol for nonbeverage purposes and wine for sacramental purposes, being not involved in this case.

Where a witness, while on the stand under oath, admits the commission of a crime punishable in this state, it is not a mistrial for the court to order such witness into the custody of the sheriff.

This state, in legislating for the abolition of the liquor traffic, is not confined to the field occupied by the Eighteenth Amendment of Constitution of the United States, nor to the limitations set by Congress in legislation to carry such amendment into effect.

To prove the venue it is not necessary there be direct testimony that a certain village or city is within the limits of the county in which the crime is charged to have taken place, but the court will take judicial notice “of the limits of a county, and the fact that a place proved was within such limits.”

Exceptions to the charge of the court are examined, and it is held, the charge fairly and impartially presents the law of the case to the jury.

Where there is sufficient evidence presented by the state from which the jury could find the defendant guilty of the crime charged, this court will not disturb the verdict.

Appeal from District Court, Eddy County; Fred Jansonius, Judge.

H. M. Severin was convicted of engaging in the liquor traffic as a second offense, and he appeals. Affirmed.Sinness & Duffy, of Devils Lake, for appellant.

N. J. Bothne, State's Atty., of New Rockford, for the State.

BURR, J.

The defendant was convicted of “engaging in the liquor traffic as a second offense,” the specific charge being that in Eddy county the defendant “did wilfully, unlawfully and feloniously possess intoxicating liquor intended for use as a beverage; that such intoxicating liquor consisted of whisky and alcohol, that on the 10th day of November, 1926, in the District Court of Eddy County the said above-named defendant was found guilty of the crime of engaging in the liquor traffic and on the 13th day of November, 1926, was sentenced by the district court.”

The defendant made a motion for a new trial, and on this being denied he appeals from the judgment and sentence of the district court and the order denying the motion for new trial.

There are three classes of specification of errors, viz.: That the trial court erred in denying the motion for a continuance of the case over the term made at the commencement of the trial; that the court “erred in failing to instruct fairly and impartially upon all of the issues in each cause and particularly in failing to give any instructions on the presumption of defendant's innocence”; and that the verdict is contrary to law, in “that the evidence wholly fails to show that the crime, if any, was committed in Eddy County and the evidence wholly fails to show that the defendant had in his possession intoxicating liquor.” In addition error is predicated on remarks of the court made in the presence of the jury.

The record shows the defendant was arrested on or about August 13, 1928. He waived examination and was admitted to bail in the sum of $1,000. In 1926 this defendant had been convicted of violating the prohibition law and sentenced by the district court to serve a term of imprisonment in the county jail; but the court suspended the execution of such sentence and paroled the defendant. After the arrest on the second charge, the court, as the defendant himself says in his brief, “revoked his suspended sentence and caused him to be confined in jail, subsequently transferring him to the county jail of Foster County.” The case at bar came on for trial November 20, 1928, while the defendant was serving his former sentence. He was brought from Foster county to Eddy county and permitted by the judge to be at large during the time of trial. When the case was called for trial, the defendant made an oral motion for continuance of the case over the term; his counsel at that time stating to the court: “The situation is that in the case in which he was convicted before, the sentence was suspended. When he was arrested on this charge the suspension was revoked. He has been confined in the jail and he is still confined in the jail. He was taken down to Foster County and has been confined there in the jail all of the time. I have endeavored to get the sentence suspended long enough for him to get out of jail and prepare for the trial of this case. I have not been able to get the consent of the State's Attorney to do that, and I do not feel that a man can properly prepare his case when being confined in jail, and that it is wholly unfair to keep him in jail on one charge and try him on another at the same time. Therefore, I shall ask that the case be continued over the term so that he will have an opportunity to prepare his case for trial.” The record does not contain any showing in support of this motion. There is nothing to show that from the time of the arrest of the defendant in August, until commencement of the trial in November-a period of over three months-the defendant could not prepare for his trial. There is no showing when his parole was revoked or how long he was at liberty before that time. There is no showing that he was in any way different from a man who is arrested upon a criminal charge and detained in jail because he is unable to furnish bail. This defendant would be no more handicapped in preparing for trial than a man lying in jail waiting trial. There was no error in denying the motion for continuance.

[5] The specification of error regarding the alleged failure of the court “to instruct fairly and impartially upon all of the issues” comprises the exceptions to the instructions, filed with the court. The first exception attacks this portion of the charge: “I think it is not necessary for me to tell you that your attitude towards this particular law should in no way influence you. It is not a question of whether the law is a good law or a bad law. The question is, has this law been violated.” It is said: “This was clearly an intimation by the court that failure to convict would brand the jurors as being opposed to the prohibition law.” We do not so construe the instruction. It was directed as much to those jurors who were biased in favor of prohibition, telling them not to convict unless it was shown the law had been violated, as it was to those who believe to the contrary.

The next exception is that the court said: “The questions of fact are: Did the defendant at the time and place named in the information have in his possession intoxicating liquor, to-wit: Whisky and alcohol; and is this his second offense?” It is alleged that this makes “mere possession conclusive as to defendant's guilt.” The exception overlooks another portion of the charge, which must be taken in connection with the portion objected to, viz.: “I charge you gentlemen of the jury that it is the having in possession of intoxicating liquor intended for use as a beverage that is the gist of this offense.”

The appellant objects to the portion last quoted, also, on the ground that “under this instruction the jury may have found defendant guilty for being in possession of the keg, Exhibit K (the keg of wine), possession of which he admitted,” or certain bottles containing wine which defendant admitted had been in his custody several days. It is true the information states that the intoxicating liquor of which the defendant was possessed consisted of whisky and alcohol; but a search warrant had been issued, and upon search of the premises this keg of wine was found concealed in the coal bin. The defendant admitted it was his; there was no objection to the introduction of the exhibit in evidence. The defendant himself in his brief says: “The reason for not objecting was that the objection would have been wholly unavailing in so far as the effect upon the jury was concerned.” In the charge the court said: “It is the being in possession of intoxicating liquor intended for use as a beverage which is the gist of this offense.” But the court in its instructions to the jury in another place charged that “whisky and alcohol” were the intoxicating liquors, the possession of which had to be proved and said:

“I charge you, Gentlemen of the Jury, that if the defendant, either as principal or as accessory, had possession of intoxicating liquor, that is, whisky or alcohol, and you so find beyond a reasonable doubt, your verdict must be a verdict of guilty as charged in the information, if you will also find that he was heretofore convicted as charged in the information.”

“Under our law whisky and alcohol are intoxicating liquors, and it is not necessary to prove that they are intoxicating. The law presumes that those liquors are intoxicating liquors.”

It is said the court erred in stating to the jury: “To be the possessor, it is not necessary that one has the prohibited liquor in his physical possession, or that he is the sole possessor. If alcohol or whisky are kept on defendant's premises, in his hotel or the hotel of which he was the proprietor, with his knowledge and consent, and you so find from the evidence beyond a reasonable doubt, you should find the defendant guilty as charged.” Defendant says: “Here the jury is specifically instructed to find the defendant guilty if it finds that he heretofore had...