State v. Thoemke

• Decision Date: 18 December 1902
• Docket Number: 6731
• Parties: STATE v. OTTO W. THOEMKE
• Court: North Dakota Supreme Court

92 N.W. 480

11 N.D. 386

STATE v. OTTO W. THOEMKE

No. 6731

Supreme Court of North Dakota

December 18, 1902

Appeal from District Court, Cass County; Pollock, J.

Otto W Thoemke was convicted of maintaining a place wherein intoxicating liquors were sold in violation of law, and appeals. Affirmed.

Affirmed.

J. W Tilly, for appellant.

Emerson H. Smith and George W. Newton, for the State.

OPINION

YOUNG, J.

The defendant was informed against by the state's attorney of Cass county for maintaining a common nuisance in violation of section 7605 of the Revised Codes. The jury returned a verdict of guilty. Defendant moved for a new trial upon the alleged insufficiency of the evidence to sustain the verdict errors in the admission of testimony and in the instructions, which motion was denied. The trial court imposed a sentence of 90 days in the county jail and a fine of $ 200 and costs of prosecution. The defendant has appealed from the judgment, and relies upon the same grounds in this court which were urged in support of his motion for new trial.

The first ground urged is that "the verdict of the jury is unsupported by the evidence." Section 7605, Rev. Codes which defines the offense of which the defendant was convicted, so far as material, reads as follows: "All places where intoxicating liquors are sold, bartered or given away, in violation of any of the provisions of this chapter, or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or where intoxicating liquors are kept for sale, barter or delivery in violation of this chapter, are hereby declared to be common nuisances; * * * and the owner or keeper thereof shall upon conviction be adjudged guilty of maintaining a common nuisance." The offense which is made punishable by the above section is the keeping of a place where the forbidden acts are committed. In referring to this section in State v. Dellaire, 4 N.D. 312, 60 N.W. 988, this court said: "We notice that selling intoxicating liquors contrary to the provisions of this act does not constitute the offense. Nor does keeping intoxicating liquors for sale contrary to the provisions of this act constitute the offense. Neither is the offense committed by permitting persons to resort to the place for the purpose of drinking intoxicating liquors as a beverage. They are evidences of the offense. It is keeping the place where these things, or some of them, are done, that constitutes the offense. Proof of keeping by the defendant, and that any one of the prohibited acts was done by the defendant in such place during such keeping, would make the offense complete." In this case it is undisputed that the place at which the information alleged the prohibited acts were done was owned by and in the possession and control of the defendant; in other words, there is no dispute that the defendant was the owner and keeper of the place. The vital question was whether it was a common nuisance, under the above section. The state relied upon proof of unlawful sales by defendant to give the place that character. We have examined the evidence on this point, and find that the verdict of the jury has ample support. Andrew Prior, a witness for the state, testified to purchasing whisky from the defendant at his place on two different occasions,--at one time two quarts, at the other a single quart,--and that he divided the liquor so purchased among the members of a threshing crew. He also testified to purchasing beer from the defendant, and to being one of a number of persons, whom he named, who purchased from the defendant and divided among themselves a keg of beer. S. H. Bergrud, a witness for the state, also testified to purchasing a pint of whisky from the defendant, and also to being one of the persons who purchased and drank a keg of beer at the defendant's place. The defendant himself testified that he procured a keg of beer for his hired man, and charged it to him, and that this was drunk upon his premises by the hired man and five or six other persons. The defendant denied having sold whisky to Prior, or any one else, and claimed that one of the kegs of beer referred to by the witness belonged to his cousin, and that the keg which his hired man had was merely ordered by him, and that he did not sell it. He also called a number of persons to whom Prior had given portions of the whisky which he claimed to have bought from the defendant, who testified that Prior had stated to them that he did not get it from the defendant. Prior's explanation of these statements is that he was a friend of the defendant, and did not wish to get him into trouble. On this state of facts we cannot say that the verdict is not sustained by the evidence. Repeated sales by defendant are sworn to. The credibility of the witnesses, and the weight to be given to their testimony, was for the jury. In this case the state has not sought an order of abatement of the alleged nuisance. Whether the information and evidence would sustain such an order, had it been made, we need not determine. That question is not in the case. It is well settled that, where the prosecution is only against the person, an information charging the keeping of a place where the forbidden acts are committed is sufficient, and a conviction thereunder will be sustained. The rule is different where an...