State v. Stanley
| Decision Date | 28 June 1917 |
| Citation | 164 N.W. 702,38 N.D. 311 |
| Court | North Dakota Supreme Court |
Rehearing denied October 13, 1917.
Prosecution for the crime of bootlegging.
Appeal from the District Court of Ramsey County, Honorable C. W Buttz, Judge.
Judgment for plaintiff.
Defendant appeals.
Affirmed.
M. H Brennan, for appellant.
The commitment was void because of no indorsement on the complaint by the magistrate, and defendant should have been released on habeas corpus. State v. Rozum, 8 N.D. 548, 80 N.W. 480; Comp. Laws 1913, §§ 10,616, 11,375; Ex parte Branigan, 19 Cal. 138.
In a legal sense a person is drunk when he is visibly excited, or his judgment is impaired by liquor. He is not, under such circumstances, capable of making a contract, and cannot be capable of understanding the matter of waiving an examination in a criminal action. State v. Pierce, 65 Iowa 85, 21 N.W. 195; 1 Whart. & S. Med. Jur. p. 13.
Where the charge of selling liquor is made in a certain city, it is insufficient if it does not state a definite place in that city at which the sale is claimed to have been made. Arrington v. Com. 87 Va. 96, 10 L.R.A. 242, 12 S.E. 224.
Ownership of the building or property where the sale took place must be alleged and proved. 6 Cyc. 204; State v. Trapp, 17 S.C. 470, 43 Am. Rep. 614.
In this case the state should have pleaded and proved a partnership. 6 Cyc. 215; State v. Rivers, 68 Iowa 611, 27 N.W. 781; Emmonds v. State, 87 Ala. 12, 6 So. 54; Davis v. State, 54 Ala. 88.
The owner of a building cannot be convicted of this crime merely because some person entered the building and began to sell liquor there. Knowledge and consent must be clearly shown. State ex rel. Kelly v. Nelson, 13 N.D. 125, 99 N.W. 1077; Merryfield v. Swift, 103 Iowa 167, 72 N.W. 444; State v. Lawler, 85 Iowa 564, 52 N.W. 490; Morgan v. Koestner, 83 Iowa 134, 49 N.W. 80; State v. Severson, 88 Iowa 714, 54 N.W. 347; State v. Price, 92 Iowa 181, 60 N.W. 514.
The defendant, charged with selling to three persons jointly, cannot be convicted of an illegal sale to but one of the three named. State v. Williams, 20 S.D. 492, 107 N.W. 830; State v. Julius, 29 S.D. 638, 137 N.W. 590; State v. Gordon, 32 N.D. 31, 155 N.W. 59.
On the trial of a person accused of crime, proof of a distinct, independent offense is inadmissible. People v. Molineux, 168 N.Y. 264, 62 L.R.A. 193, 61 N.E. 286; State v. Miller, 20 N.D. 509, 128 N.W. 1034; State v. Fallon, 2 N.D. 510, 52 N.W. 318; Johnson v. State, Tex. Crim. Rep. , 62 S.W. 755; Freedman v. State, 37 Tex. Crim. Rep. 115, 38 S.W. 993; Walker v. State, 44 Tex. Crim. Rep. 546, 72 S.W. 861; State v. Dooley, 89 Iowa 584, 57 N.W. 414; State v. Murphy, 17 N.D. 48, 17 L.R.A. (N.S.) 609, 115 N.W. 84, 16 Ann. Cas. 1133.
Intent will be inferred from the act. Consequently the extraneous incidents were all inadmissible on the pretext of showing intent, and such evidence will be presumed to be harmful. Rock v. State, Ind. , 110 N.E. 212; Hood v. State, 56 Ind. 275, 26 Am. Rep. 21, 2 Am. Crim. Rep. 165; Marmont v. State, 48 Ind. 31, 1 Am. Crim. Rep. 447; Porter v. State, 173 Ind. 703, 91 N.E. 340.
Where evidence of other offenses is offered, a complete case must be made out, that is, a crime must be shown. Baxter v. State, 91 Ohio St. 167, 110 N.E. 456; Baldwin v. State, 11 Okla. Crim. Rep. 228, 144 P. 634; People v. Plummer, 189 Mich. 415, 155 N.W. 533; Chipman v. People, 24 Colo. 520, 52 P. 677; State v. Fulwider, 28 S.D. 622, 134 N.W. 807; State v. Benson, 154 Iowa 313, 134 N.W. 851; State v. Hakon, 21 N.D. 133, 129 N.W. 234; Elliott, Ev. § 156.
It is not sufficient to offer evidence of other crimes, even though remote intent may appear. State v. Foxton, 166 Iowa 181, 52 L.R.A. (N.S.) 919, 147 N.W. 347, Ann. Cas. 1916E, 727.
The court erred in asking the parties immediately after argument if they would waive written instructions and consent to oral, especially when in open court and in the presence of the jury. Forzen v. Hurd, 20 N.D. 42, 126 N.W. 225.
Defendant was entitled to an instruction requiring the state to apprise him of what transaction it relied on and requiring it to elect on which it proposed to stand. State v. Poull, 14 N.D. 557, 105 N.W. 717; State v. Boughner, 7 S.D. 103, 63 N.W. 542.
William Langer, Attorney General, and Rollo F. Hunt, State's Attorney, for respondent.
In appeal cases the court must give judgment without regard to technical errors or defects or exceptions, which do not affect the substantial rights of the parties. Comp. Laws 1913, § 11,013.
All the law requires in an information is that it shall contain a statement of the acts constituting the offense in ordinary and concise language and in such a manner as to enable a person of common understanding to know what is intended. Comp. Laws 1913, chap. 8, Code Crim. Proc.; State v. Longstreth, 19 N.D. 268, 121 N.W. 1114, Ann. Cas. 1912D, 1317; State v. Lewis, 13 S.D. 166, 82 N.W. 406; State v. Hellekson, 13 S.D. 242, 83 N.W. 254; State v. Kent, 4 N.D. 577, 27 L.R.A. 686, 62 N.W. 631; State v. Burchard, 4 S.D. 548, 57 N.W. 491; Deadwood v. Allen, 8 S.D. 618, 67 N.W. 835.
It is not necessary to describe with particular accuracy the exact location where the offense of selling intoxicating liquors is committed. State v. Rozum, 8 N.D. 548, 80 N.W. 477; State v. Donaldson, 12 S.D. 259, 81 N.W. 299; State v. Cambron, 20 S.D. 282, 105 N.W. 241; Arrington v. Com. 87 Va. 96, 10 L.R.A. 242, 12 S.E. 224.
Bootlegging in a building consists in selling or bartering intoxicating liquors without the permission of the owner or person entitled to the possession of such building. The information clearly charges such offense. Comp. Laws 1913, § 10,144.
The question of making the information more definite and specific is a matter of discretion with the trial court. State v. Hakon, 21 N.D. 135, 129 N.W. 234.
The testimony discloses a complete sale of intoxicating liquor by defendant to the three persons named and at the time and place stated in the information, and defendant's efforts to evade consist of the most meager technicalities. State v. Dellaire, 4 N.D. 312, 60 N.W. 988; Nelson v. United States, 30 F. 112; McCuen v. State, 19 Ark. 630; Hill v. Dalton, 72 Ga. 314; Parmenter v. United States, 6 Ind. Terr. 532, 98 So. 340; State v. Brooks, 33 Kan. 708, 7 P. 591, 6 Am. Crim. Rep. 299; State v. Whisner, 35 Kan. 271, 10 P. 852; Junction City v. Webb, 44 Kan. 71, 23 P. 1073; State v. Moseli, 49 Kan. 142, 30 P. 189; Lincoln Center v. Linker, 5 Kan.App. 242, 47 P. 174.
It is proper to offer evidence of independent offenses committed by defendant where they tend to disclose motive, intent, or system on the part of defendant. Jones, Ev. 2d ed. §§ 143, and 144; People v. Giddings, 159 Mich. 523, 124 N.W. 546, 18 Ann. Cas. 844; Pitner v. State, 37 Tex. Crim. Rep. 268, 39 S.W. 662; Walker v. State, 49 Tex. Crim. Rep. 345, 94 S.W. 230; Archer v. State, 45 Md. 33, 2 Am. Crim. Rep. 404; Com. v. Sinclair, 138 Mass. 493, 5 Am. Crim. Rep. 330; State v. Miller, 20 N.D. 509, 128 N.W. 1034; State v. Fallon, 2 N.D. 510, 52 N.W. 318; State v. Lapage, 57 N.H. 245, 24 Am. Rep. 69, 2 Am. Crim. Rep. 506; State v. Murphy, 17 N.D. 48, 17 L.R.A. (N.S.) 609, 115 N.W. 84, 16 Ann. Cas. 1133; People v. Molineux, 168 N.Y. 264, 62 L.R.A. 193, 61 N.E. 286; State v. Hakon, 21 N.D. 133, 129 N.W. 234; State v. O'Brien, 35 Mont. 482, 90 P. 514, 10 Ann. Cas. 1006; State v. Peterson, 98 Minn. 210, 108 N.W. 6.
The statute does not require the court to give written instructions in all cases. Where the parties and counsel are all in court, and consent is asked by the court and given by counsel, oral instructions may be given. It is not a question of ethics or propriety. Forzen v. Hurd, 20 N.D. 42, 126 N.W. 224; State v. Poull, 14 N.D. 557, 105 N.W. 717; State v. Boughner, 7 S.D. 103, 63 N.W. 542.
In this case the defendant has been convicted of the crime of bootlegging, and he appeals to this court. The conviction is under Comp. Laws, § 10,144. The crime is committed by any person selling intoxicating liquors one or more times to one or more persons upon public roads, streets, or alleys, or upon lands and buildings of any person, without the permission of the owner of such land or buildings. The charge against the defendant is that on July 3, 1915, in Devils Lake, Ramsey county, he did sell to each of three certain persons intoxicating liquors as a beverage, in a frame barn of one Maher & Lock, and that he did it without the permission of the owners of said barn. Clearly the information states an offense within the statute, and the evidence shows beyond all doubt that the defendant is guilty. It also shows that he got drunk, and contracted to sell a case of beer, and received the money without delivering the goods. Six dollars and fifty cents was paid to Stanley for a case of beer. He pocketed the money, as he himself admits, and failed to deliver the beer. He quarreled with the purchasers, and became aggressive, and struck one of them when requested to return the money or to deliver the beer.
Five express orders made to a wholesale liquor house in St. Paul were put in evidence in connection with testimony of the defendant himself and other witnesses. These make a conclusive showing that, during the month of June, defendant sent five orders to St. Paul for whisky, and every order was for 24 pints.
Defendant is a married man. He called as witnesses his wife and his son, a boy of seventeen years. He was a witness for himself and against himself. His own testimony strongly corroborates the positive testimony against him, though he positively denied selling any liquor, as charged against him.
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