State v. Virgo

• Decision Date: 25 May 1905
• Citation: State v. Virgo, 14 N. D. 293, 103 N. W. 610 (N.D. 1905)
• Court: North Dakota Supreme Court

103 N.W. 610

14 N.D. 293

STATE OF NORTH DAKOTA v. GEORGE L. VIRGO

Supreme Court of North Dakota

May 25, 1905

Appeal from District Court, Bottineau county; Palda, J.

George L. Virgo was convicted of keeping a common nuisance, and appeals.

Reversed.

Judgment reversed, and new trial ordered.

H. S Blood and Geo. A. Bangs, for appellant.

Former acquittal, by reason of variance between the information or indictment and the proof, is not an acquittal of the same offense. See sections 8235 and 8106, Rev. Codes 1899.

In the absence of evidence an acquittal will be presumed to be upon the merits, and it is upon the state to show otherwise. Croft v. Peo, 15 Hun. 484; State v Maxwell, 51 Iowa 314, 1 N.W. 666; Moore v State, 71 Ala. 307; State v. Clenny, 1 Head. 270.

Parol evidence of the identity of the offense is admissible. Swally v. Peo, 116 Ill. 247, 4 N.E. 379; Duncan v. Com., 6 Dana, 295; Marshall v. State, 8 Ind. 498; State v. Andrews, 27 Mo. 267; Porter v. State, 17 Ind. 415; State v. Maxwell, 51 Iowa 314, 1 N.W. 666.

Allegation of place within the county and state is all that is required as far as the guilt or innocense of the defendants is concerned. The allegation of particular lot and block may be regarded as surplus. State v. Kraig, 13 Iowa 462; State v. Shilling, 14 Iowa 455; State v. Freeman, 27 Iowa 333; State v. Waltz, 38 N.W. 494; 2 Bishop Crim. Proc. 111; State v. Rozum, 8 N.D. 548, 80 N.W. 477; State v. Thoempke, 11 N.D. 386, 92 N.W. 480.

The court erred in its charge: "Any liquors which contain any percentage of alcohol, if they are sold as a beverage, are intoxicating." Const. N.D., article 20, section 7598, Rev. Codes 1899.

OPINION

YOUNG, J.

The defendant was tried and convicted upon an indictment charging him with keeping and maintaining a common nuisance upon lots 11 and 12, in block 12, in the original townsite of Richburg, in Bottineau county, and he appeals from the judgment.

The trial judge, in his instructions to the jury, after stating that the indictment alleged three methods of keeping and maintaining the nuisance, i. e., by keeping a place (1) where intoxicating liquors were sold, bartered or given away as a beverage, (2) where intoxicating liquors were kept for sale, etc., and (3) where people were permitted to resort for the purpose of drinking intoxicating liquors as a beverage, used the following language, which is assigned as error: "Intoxicating liquors, gentlemen of the jury, under our law, are liquors: First, of the nature of malt, or spirituous or vinous liquors which will intoxicate, or any preparation or concoction thereof which will produce intoxication; second, any liquors which contain any percentage of alcohol, if they are sold as a beverage." Counsel for defendant contend that the latter part of the instruction is erroneous upon any state of facts, and we agree with the contention. The instruction complained of informed the jury that all liquors which contain any percentage of alcohol and are sold as a beverage are intoxicating liquors under our law. The statute defining intoxicating liquors furnishes no warrant for this instruction. All liquors containing alcohol are not intoxicating, and the statute of this state only prohibits the sale of intoxicating liquors; that is, liquors which will produce intoxication. The legislature has defined intoxicating liquors three times. In the original prohibition law, chapter 110, p. 309, Laws 1890, in section 6 (page 316), they were defined as liquors "that will produce intoxication." This section was amended by section 1, c. 74, p. 111, Laws 1895 (section 7598, Rev. Codes 1895), and among other things a proviso was added to that section "that fermented and alcoholic liquors and mixtures thereof shall not be deemed intoxicating if they contain less than two per cent of alcohol by volume." The latest definition is contained in chapter 96, p. 156, Laws 1897 (section 7598, Rev. Codes 1899), which reads as follows: "All spirituous, malt, vinous, fermented or other intoxicating liquors or mixtures thereof, by whatever name called, that will produce intoxication, or any liquors or liquids which are made, sold or offered for sale as a beverage and which shall contain coculus indicus, copperas, opium, cayenne pepper, picric acid, Indian hemp, strychnine, tobacco, darnal seed, extract of logwood, salts of zinc, copper or lead, alum or any of its compounds, methyl alcohol or its derivations, amyl alcohol or any extract or compound of any of the above ingredients, shall be held to be intoxicating liquors within the meaning of this chapter." Under this section "intoxicating liquors" include spirituous, malt, vinous, fermented or other intoxicating mixtures thereof "that will produce intoxication;" also all liquors or liquids, sold as a beverage, which are compounded from the drugs enumerated, that will produce intoxication. The requirement that they will produce intoxication is common to both classes, as plainly as though the description clause was repeated in the latter part of the section. This construction is required by the act of which this section is a part, and is entirely consistent with the language of the section. The foregoing error requires a reversal of the judgment.

The record presents a further question which will arise upon the new trial, and will therefore be considered. The defendant in addition to his plea of not guilty, interposed a plea of former acquittal. To sustain this plea, he introduced in evidence an information, which had previously been filed in the district court of that county by the state's attorney, which...