State v. Staber

• Decision Date: 09 December 1910
• Citation: 20 N.D. 545,129 N.W. 104
• Parties: STATE v. STABER.
• Court: North Dakota Supreme Court

20 N.D. 545

129 N.W. 104

STATE

v.STABER.

Supreme Court of North Dakota.

Dec. 9, 1910.

Syllabus by the Court.

The admission of incompetent evidence, which could not have prejudiced the defendant, the facts having been established by other undisputed and competent testimony, is not ground for reversal.

A record describing articles of freight received at a local station, billed to defendant and another, and delivered to defendant, with his signature acknowledging receipt of such articles, is competent evidence tending to show the nature of the articles so receipted for.

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

Remarks of the state's attorney in his address to the jury, as set forth in the opinion, held not prejudicial.

Appeal from District Court, Richland County; Frank P. Allen, Judge.

Andrew Staber was convicted of violation of the prohibitory law, and appeals. Affirmed.Purcell & Divet, for appellant. C. E. Wolfe, State's Atty., Jos. Forbes, Asst. State's Atty., and Andrew Miller, Atty. Gen., for the State.

CARMODY, J.

The defendant was informed against jointly with one Leonard Staber for keeping and maintaining a common nuisance in violation of the prohibition law, on certain premises in the village of East Wyndmere in Richland county, on the 1st day of July, 1909, and thence continuously from day to day until the 18th day of August, 1909. He demanded and procured a separate trial, which resulted in his conviction. In due time a motion for a new trial was made and denied. From the order denying the motion for a new trial, defendant appeals to this court.

On the trial Frank Beaver testified that he peddled and sold beer for the defendant. Other witnesses testified to having drunk beer on the premises and seeing others drinking there. Also to seeing the defendant on the premises, and one witness testified to being served with beer by the defendant. The state then introduced C. S. Kimber, station agent of the Northern Pacific Railroad Company at Wyndmere, who testified that he knew the defendant; that in the conduct of the business of his office he kept books in which he noted the receipt and delivery of express and freight. Had the books with him, which showed the delivery of freight and express for the month of July and the first 18 days in August, 1909. Thought he had a record of shipments delivered to defendant personally between July 1 and August 18, 1909. Exhibits C, D, E, and F are freight receipts. In the railroad and express business they are used for the consignee's receipt, and are signed by the party to whom the goods are delivered, that is, the consignee. Witness examined the signature at the bottom of each of the exhibits and could not be sure whether the handwriting was Girder's or Staber's. About the time these instruments bear date, there was a firm or partnership doing business in Wyndmere by the name of Girder & Staber. He was then asked the following question: “Do you know who the Staber of that firm was?” The question was objected to by the defendant, as calling for a conclusion of the witness as to whether or not there was such a firm, and it assumes the fact that the witness has not shown himself competent to testify as to the character of any concern doing business as Girder & Staber, or what their relations were. The objection was overruled, to which the defendant excepted. “A. Yes, sir. Q. Which Staber was it? A. Andrew Staber, the defendant sitting behind Mr. Divet.” The receipts marked C, D, E, and F were made by the agent's helper, did not come with the goods, waybills come with goods. There is a memorandum made on these receipts or on the waybills; that memorandum is found on the left-hand side of the bill. The bills are numbered consecutively for a month. The yellow papers attached to the back of three of these exhibits are bills of lading. They did not come with the goods. They are for record, to show the delivery to the right party. Did not have any independent recollection of the transactions that were embodied in these papers, except what the papers showed. He was required to keep such records.

The plaintiff offered in evidence Exhibit E. The defendant objected to the introduction of Exhibit E upon the ground that it was incompetent, irrelevant, and immaterial; no proper foundation laid; not proof of any fact recited therein, and if intended as an admission upon the part of the defendant, no foundation has been laid by showing what knowledge of the same was ever brought home to the defendant; and upon the further ground that it was not the best evidence, having been made up by the witness from other memoranda, which memoranda would be the best evidence. In support of this evidence, the defendant asked leave of the court to examine the witness preliminary as to the exact manner of making up the exhibit, which request was granted. Preliminary examination by Mr. Divet: “Q. Mr. Kimber, the parts of the exhibit that appear in writing as distinguished from the parts in printing were placed upon that paper in the office when the goods were delivered at Wyndmere, were they not? A. Yes, sir; the entries upon Exhibit E were not made by me. They were made by Elmer Sheder; he was employed in the office of the railway company at Wyndmere. He got the information from which the exhibit is made up from the waybill, from which the goods were received. The waybill is a paper containing upon it, in writing, matters purporting to describe the goods that are shipped, to give the weight thereof, the rate of freight, and the amount of freight. Exhibits of the character of Exhibit E, and Exhibit E itself, is but a copy taken from the waybill of the parts that appear in writing. Q. Whether or not the things upon Exhibit E were correctly copied you have no means of knowing, have you? A. Yes, sir. Q. As a matter of fact, the party making the exhibit resorts to the waybill for his information, doesn't he? A. Yes, sir. Q. And without the waybill the party would have no means of putting upon the Exhibit E that I am referring to the characters and writings that are made upon it; that is, he got his information from it? A. Yes, sir. By the Court: What means of knowledge have you as to the correctness of Exhibit E, that it has been correctly copied from the waybill? A. After the work is done, after they are made out, I look them over. Q. Do you look them over? A. Certainly. Q. And compare them? A. Yes. Examination continued by Mr. Divet: I could not remember that I ever looked over and compared this particular waybill, Exhibit E, that we are referring to, but we look them all over. By the Court: You say you looked this one over? A. I expect I did. Q. Are you prepared to say you did? A. Yes, sir. The waybills from which this copy is made are sent to St. Paul, to the offices of the railroad company in St. Paul. By Mr. Divet: The defendant now adds to the objection made the specific objection that it appears that the exhibit is not the best evidence, and no foundation has been laid for the introduction of secondary evidence by attempting to procure the original of which the exhibit purports to be a copy, and upon the further ground that there is no showing that the original waybill itself contained a correct description of the articles referred to in the exhibit. The objection is overruled, to which the defendant excepts. The state now offers in evidence Exhibits C, D, and F, with the papers attached to the back of each. The defendant objects to Exhibits C, D, and F upon all the grounds urged to the objection of Exhibit E. It is stipulated that the same record may be considered as made to each of said exhibits, as made by the preliminary examination as to Exhibit E. To the papers attached to each of the three exhibits last offered, the defendant objects upon the ground they are irrelevant, immaterial, and incompetent, no proper foundation laid, and in no wise binding upon the defendant. The objection is overruled, to which the defendant excepts.”

On cross-examination, the witness testified that he examined the signature at the bottom of the four exhibits that have been offered in evidence as the signature of Girder & Staber. Could not say which one wrote them. Knew one of them did, because he did not deliver the goods to the other party; had no recollection of delivering this particular shipment. Freight is sometimes delivered by others except witness. Beer shipments or liquor shipments are not delivered to people other than the consignee. He always instructed his helper not to deliver liquor or beer shipments to people other than the consignee, but could not swear whether he did or not. The firm of Girder & Staber went out of existence some time about July 1, 1909.

W. M. Baumgartner, station agent of the Soo road at Wyndmere, called as a witness, testified that he had charge of the receipt and delivery of freight and express. Kept records that showed the receipt and delivery of freight and express. Had a record of the delivery of shipments of express from July 1, 1909, to August 18, 1909. There was no record of any express delivered to defendant during the time, but there was a record of a delivery to Girder & Staber during that time. Heard the testimony of Kimber as to the way business was done at the Northern Pacific office. The Soo station and the Northern Pacific station were together in the same building. Papers were then marked Exhibits H, J, and K. Exhibits H, J, and K were freight receipts. These receipts were signed by the consignee. Had no independent recollection with reference to any of these shipments mentioned in the exhibits. All he knew about them was what the record showed. Have done business with Andrew Staber to a certain extent. Never saw him sign his name. Had seen him sign the name of Girder & Staber. Had seen him sign Exhibits H, J, and K. Collected the freight charged on these...