State v. Sievert
| Decision Date | 02 April 1928 |
| Docket Number | 5369 |
| Citation | 218 N.W. 871,56 N.D. 678 |
| Court | North Dakota Supreme Court |
Rehearing denied April 16, 1928.
Appeal from the District Court of Richland County, Wolfe, J.
Defendant was convicted on a charge of keeping and maintaining a common nuisance and appeals.
Reversed.
Judgment reversed and a new trial granted.
Purcell & Heder, for appellant.
"A waiver exists only where one with full knowledge of a material fact does or forbears to do something inconsistent with the existence of the right or of his intentions to rely upon that right." 40 Cyc. 259.
State v. Young, 55 N.D. 194, 212 N.W 857.
"In a trial for murder, while it is proper to instruct the jury to consider the interest of the accused as a witness, an instruction casting discredit and suspicion upon his testimony is error." State v. White, 10 Wash. 611, 39 P. 160.
"An erroneous instruction in a criminal case is not cured by the giving of a correct instruction; the result serving to confuse the jury and to render it impossible to determine whether they followed the correct or incorrect instruction." People v. Maughs (Cal.) 86 P. 187.
C. E. Lounsbury, State's Attorney, and W. L. Divet, Assistant State's Attorney, for respondent.
"Failure to instruct on the question of evidence of good character, in the absence of a request for a particular instruction stating the law, is not reversible error." Sweet v. State, 75 Neb. 263, 106 N.W. 31; Morris v. Territory (Okla.) 99 P. 760.
"In the absence of a request for a proper instruction defining the phrase 'reasonable doubt,' the failure of the court to define these words is not error." Bynum v. State, 46 Fla. 142.
"Although there is authority to the contrary, as a general rule, it is proper to give an instruction calling the attention of the jury to defendant's interest in the result as affecting his credibility." 16 C. J. 1020; Philamelee v. State (Neb.) 78 N.W. 625; Emery v. State (Wis.) 79 N.W. 145.
The defendant was informed against in the district court of Richland County on a charge of keeping and maintaining a common nuisance on and between January 1, 1925 and June 20, 1926 in the village of Great Bend, Richland county, North Dakota. He was arraigned, entered his plea of not guilty, the case was tried, and the jury returned a verdict of guilty. Judgment was entered on this verdict. Thereafter the defendant moved for a new trial on various grounds and the motion was denied. This appeal is from the order denying his motion for a new trial and from the judgment of conviction.
The defendant in support of his appeal first contends that the district court was without jurisdiction for the reason that there was no proper and sufficient complaint upon which to ground the prosecution. It seems that during the trial of the cause, on cross examination of the complaining witness, some evidence was adduced tending to show that the complaining witness had never sworn to the complaint upon which the warrant of arrest was issued in the first instance. This is the basis for the defendant's contention which was at once raised. We have examined the record with respect to this particular matter and we are of the opinion, considering the whole testimony, both of the complaining witness and the justice of the peace who issued the original warrant, that there is no ground upon which to sustain the defendant's contention that the original complaint was not sworn to. But, in any event, when the defendant was arrested and taken before the justice of the peace who issued the warrant, he waived examination and was bound over to the district court. Thereafter an information against him was duly filed in the district court. The defendant was arraigned thereunder and entered his plea of not guilty to the charge as contained therein. At no time was objection taken to the information and no motion was made to set it aside. Under these circumstances the defendant waived any objection that he might otherwise have made to the information. See Comp. Laws 1913, § 10,729; State ex rel. Poul v. McLain, 13 N.D. 368, 102 N.W. 407; State v. Hart, 30 N.D. 368, 152 N.W. 672; State v. Taylor, 31 N.D. 236, 153 N.W. 981.
The defendant has also assigned numerous errors based on rulings of the court respecting matters of evidence. We have examined these several assignments and are of the opinion that with one exception they are without merit. One assignment, however, is such that we think there must be a reversal on account of the ruling complained of.
As heretofore stated the defendant was charged with the offense of keeping and maintaining a common nuisance on and between the 1st day of January, 1925 and the 20th day of June, 1926 in the village of Great Bend, North Dakota. The state offered evidence tending to show that the defendant had conducted a drug store in Great Bend for many years prior to October 1st, 1925. On that date he sold the building in which he had been operating this store and removed the stock of druggist's supplies which he then had on hand to a barn some fifty feet from the drug store building. Whether the two buildings were on the same lot or block does not appear, but it is certain that they were separate and distinct buildings and at least fifty feet apart. It is also certain that after October 1st the purchaser of the store building was in possession thereof and using it for his own purposes. The evidence of the state further tended to show that during the year 1925 and up to the time of the sale of the drug store building, the defendant had sold intoxicating liquor as a beverage in the drug store building and had permitted various persons to drink intoxicating liquor as a beverage therein. The state's evidence also tended to establish that after October 1st, 1925, and during the remainder of the period charged in the information, the defendant kept and maintained a nuisance as charged in the barn. When the state offered evidence respecting the keeping of the nuisance in the drug store building, the defendant objected thereto on the ground that the offense this evidence tended to establish was another and different offense from that charged in the information. The court, however, overruled this objection on the ground that no particular lot or building was charged in the information and that if the State's evidence tended to establish different offenses, the State might at the proper time be required to elect as to the particular offense on which it would stand. This ruling was correct. See State v. Poull, 14 N.D. 557, 105 N.W. 717. At the close of the state's case the defendant moved that the State be required to elect as to the offense upon which it would rely. The court required an election, and the State chose to rely upon the offense committed in the barn. Thereupon the defendant moved that all testimony touching sales or other acts tending to establish a nuisance in the drug store building be stricken from the record. This motion was denied. In charging the jury the court said:
It is clear to us that the court erred in denying the defendant's motion to strike. The evidence of the State at the time the motion was made was sufficient to sustain a finding by the jury that the defendant had kept and maintained nuisances both in the drug store and in the barn. But the evidence also established that the nuisance in the barn was maintained subsequent to the time during which the defendant had kept the nuisance in the drug store building and after he had sold and surrendered possession of the store. Neither place was kept in connection with or as a part of the other. Thus the evidence tended to establish the commission of two separate and independent offenses. See State v. Poull, supra; State ex rel. Kelly v. Nelson, 13 N.D. 122, 99 N.W. 1077. As indicated by the court's instructions to the jury heretofore quoted, the court permitted the evidence to remain in the record on the theory that it was admissible as tending to show the character of the place which was kept in the barn. This was clearly erroneous. As is said in State v. Poull, supra:
"It is elementary that evidence of other offenses than the one charged is not admissible, except in certain cases, and then for restricted purposes only."
Clearly the instant case is not within the exceptions. See State v. Heaton,.ante, 357, 217 N.W. 531, and authorities therein cited; State v. Benson, 154 Iowa 313, 134 N.W. 851....
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