The State v. Ehr

• Decision Date: 29 June 1925
• Citation: 204 N.W. 867,52 N.D. 946
• Court: North Dakota Supreme Court

204 N.W. 867

52 N.D. 946

THE STATE OF NORTH DAKOTA, Respondent, v. JOHN EHR, Appellant

Supreme Court of North Dakota

June 29, 1925

Appeal from District Court of Richland County, McKenna, J.

Affirmed.

J. A Dwyer, W. E. Purcell, and Lauder & Lauder, for appellant.

"The abutter has the exclusive right to the soil, subject only to the easement of the right of passage in the public, and the incidental right of properly fitting the way for use. Subject only to the public easement, he (the owner) has all the usual rights and remedies of the owner of the freehold." Elliott, Roads & Streets, p. 519.

"The public has only the easement in streets and highways, the fee remaining in the original owner or his successors, and that such owner may exercise such acts of ownership thereto as are not inconsistent with the easement." Railway Co. v Lake, 10 N.D. 541.

Geo. F Shafer, Attorney General, and C. E. Lounsbury, States Attorney and W. L. Divet, Assistant State's Attorney, for respondent.

Corroborating evidence may be received in a bootlegging case to show purpose, intent and plan. State v. Stanley, 38 N.D 311.

"There is an essential distinction between urban and suburban highways, and the rights of abutters are much more limited in the case of urban streets than they are in the case of suburban ways." Kincaid v. Ind. Natural Gas. Co., 24 N.E. 1066.

"When opened, streets are usually subject to the control and regulation of the municipality, subject to the paramount authority of the State." 28 Cyc. 849; State v. Redlodge (Mont.) 76 P. 758.

"The streets of a city are in the possession and control of the city, and a party owning and occupying a lot abutting on such street cannot maintain an action for possession of any portion of the street, or to eject any other party therefrom who occupies by lawful consent of the city. If plaintiff had any cause of action at all under the pleadings, it was one solely for damages." Dewey v. Chicago, B. & Q. R. Co. (S.D.) 158 N.W. 408.

"Where the question was as to whether a certain liquor was intoxicating, and the state introduced the liquor in evidence, it was proper to instruct the jury that they inspect the liquor, may look at it, smell of it, taste it, and determine whether it is or is not intoxicating, subject to the limitation that they must not drink such a quantity as, if it were intoxicating, would make them drunk." Morse v. State, 10 Ga.App. 61, 72 S.E. 534.

JOHNSON, J. CHRISTIANSON, Ch. J., and BURKE, BIRDZELL, and NUESSLE, JJ., concur.

OPINION

JOHNSON, J.

Defendant was tried and convicted of the crime of bootlegging, under chapter 194, Sess. Laws, 1915. In the information, as originally filed, he was charged with having sold intoxicating liquor in Richland county, but in a bill of particulars, furnished on demand and in obedience to an order of the court, the sale was alleged at Hankinson.

The testimony of the state tended to show that the defendant has sold a pint bottle of liquor to a detective or secret service man, in a street in Hankinson and in front of defendant's home. Defendant, testifying in his own behalf, denied the charge.

Ten errors are assigned. Eight assignments challenge the instructions, and two are based on rulings in admitting evidence. Assignments two and three assert error based on the alleged failure of the court to advise the jury that the state charged and must prove that the defendant sold the liquor within the limits of Hankinson in Richland county. The assignment is without merit. The learned trial court distinctly told the jury, at least four times, that the state must prove the sale to have been made in the city of Hankinson. The same must be said of the fourth assignment. It is true the court said that the state must prove beyond a reasonable doubt the material allegations of the information, (one of which originally had been that the sale took place in Richland county); the court, however, directly thereafter said that one of such material allegations was that the sale was made in Hankinson. The duty of the state in this regard was clearly stated by the court. It is inconceivable that the jury could have been misled by the part of the charge which appellant segregates and alleges to be erroneous.

The fifth assignment attacks an instruction which was as follows:

"In this case the evidence on behalf of the State has been largely given by paid investigators or detectives. I instruct you that the fact that the witness is or is not paid investigator or detective does not determine the question whether such witness does or does not tell the truth, and the mere fact that witnesses testifying in this case may be paid investigators or detectives does not justify you in disregarding their testimony, although the fact that they are paid investigators or detectives is one which you are entitled to and should take into consideration in determining whether they are or are not telling the truth. If you are satisfied that their testimony is true after taking into consideration all the other facts and circumstances as disclosed by the evidence, comparing their testimony with the testimony of other witnesses in the case, you should give their testimony the weight that it should properly have. The state's attorney of this county has a lawful right to employ such investigators or detectives, and you have a right to believe them. All the law requires in considering such evidence is that it be carefully scrutinized by you to ascertain whether or not the testimony of such witness is biased or whether the interest or service has influenced such witness to an extent that would reflect upon the effect of his testimony. If you are of the opinion that such witness is biased or that his testimony is influenced by his service or his interest in the case, or that he is not telling the truth, then you should give such testimony as little weight as is proper, but on the other hand if you are satisfied that such witness is telling the truth, then you should give to such evidence the same weight as you would that of any other witness."

We do not believe it is necessary to cite many authorities in support of the correctness of this instruction. Assuming that it be true that a paid investigator tends to become biased against the accused and that the desire to justify the confidence of the authorities in his skill as a detective may, consciously or unconsciously, give his testimony a color favorable to the prosecution, we are satisfied that the learned trial court directed the attention of the jury to this possibility with respect to the testimony of the investigators in such a way that the defendant cannot fairly complain. We think that the portion emphasized by the appellant himself clearly and as fairly as the defendant could legally require, warned the jury to scrutinize this class of evidence with care, and, if they believed bias existed to discount the testimony accordingly. See Com. v. Mason, 135 Mass. 555; Com. v. Ingersoll, 145 Mass. 231, 13 N.E. 613.

Assignments six and seven relate to the introduction of the bottle alleged to have been sold and the instructions of the court to the effect that the jury were at liberty to take the exhibit with them to the jury room, and that "it is to be taken into consideration by you in arriving at your verdict in this case, and you shall give it such weight as you deem it entitled to under the evidence and these instructions." No authorities are cited in support of the assignment. It is said that the jury could not derive any assistance from the presence of the exhibit unless the contents were tasted, smelled or imbibed by the members for the purpose of determining whether the liquid was intoxicating; that upon his point jurors could not be cross-examined, etc.

The exhibit had on it certain identification marks, put thereon by the chemist who analyzed the contents, and by the investigators. The chemist who analyzed the liquor stated that it had an alcoholic content of 55.9 per cent, and other witnesses testified that the liquor was intoxicating. There is no dispute on that point. We do not think that prejudicial error was committed in permitting the jury to take this exhibit to the jury room. It was proper to permit them to examine it, with all its marks of identification. The instruction is not open to the construction that the jurors were authorized to drink or taste the contents. The bottle was sealed when introduced; it is sealed still. It is evident that the jury neither smelled nor tasted the contents. The pint bottle, as it appears in the record, is sealed and approximately half filled with a liquid which the unanimous and undisputed testimony shows to be intoxicating. Generally, it is not error to permit jurors to inspect during their deliberations exhibits of personal property introduced in the case where it does not appear that such exhibits were "handled or used" in a manner inconsistent with the evidence. 12 Cyc. 677. See § 7624, Comp. Laws, 1913 and Rolette State Bank v. Minnekota Elevator Co., 50 N.D. 141, 195 N.W. 6. There is nothing whatever to indicate that any improper use was made of the exhibit by the jurors during their deliberations. The...