*1 DICKINSON, CITY Plaintiff OF
Elden A. KRAFT d/b/a
Company, Defendant and North Court of Dakota. (argued), City Atty.,
Vince H. Ficek Dic- kinson, plaintiff appellant. Howe, Maus, PC, Hardy, Galloway & Dickinson, appellee; for defendant and ar- gued by Mary E. Nordsven. MESCHKE, Justice. appeals
judgment acquitting Elden A. Kraft of dis- pensing liquor minor in a licensed hold that the establishment. We appealable, and we dis- miss the charged by 3-5 of the Dic- Section by dispensing alcoholic kinson Code permitting that beverages to a minor and minor *2 Mr. the December opening jury Kraft was licensee on beverages.1
sell alcoholic
7, 1989.
instructions,
court
instructed that
the trial
the crime to be
of
argued
an essential
attorney
The
that
this over-
City’s
by
City
sight
and that
testimo-
proved
the
was not substantial
“[t]hat
to
ny by
the
son had also referred
Company
is
Kraft d/b/a
Kraft’s
The
court was
Kraft
the licensee.
trial
At
the
premises.”
holder of said
license
to
persuaded.
City
The
then moved
evidence,
moved
the
Kraft
close of
reopen
produce
case to
additional evi-
acquittal, arguing that
judgment
for a
of
dence,
if the
prejudice
Kraft claimed
prove the crime. The
City had
to
failed
attempt
City
allowed
to
were to be
another
City resisted.
court entered
marshal evidence.
trial
29(a),2 the
keeping
judgment
acquittal.
of
City’s pertinent
trial court said that
City appealed.
Kraft moved to dis-
exhibit did not show
Kraft was
disposi-
miss
That
is
motion
licensee on December
tive.
you
invite
examine
COURT: would
to
appeal
City
right
has the same
to
One, consisting of
your State’s Exhibit
complaint
has “when the
page
is
pages.
five
The second
of which
charges
pro
an act
the defendant with
dat-
application
for a license
city
pro
by
scribed
ordinance which is also
13, 1989, and the
sheet
ed December
tax
City
Bis
by
scribed
a state statute.”
of
paid
showing
on cer-
the taxes
Hoopman, marck v.
receipt
real
in 1988 and a
tain
Minot v.
City
See
of
showing
Mr. Kraft
is
from
Knudson,
62-63
January
December
1990 to
charged with the
by
City
approved
Com-
proscribed by
[sic]
same offense as
NDCC 5-02-
City
Fargo v. Little
days
on
Compare
mission
December
06.
of
Jug,
you
Brown
point
after
the incident.
I want
to
out,
Ficek,
City’s right
appeal
Mr.
where in those documents
Accordingly,
governed by NDCC
any
is there
evidence to
29-28-07.3
Code,
29(a) says:
says:
Section 3-5
2. NDRCrimP
1.Dickinson
Jury.
submission
The court
Any
dispenses
beverag-
Motion
licensee who
before
mo-
years
of a defendant or of its own
person
twenty-one
age
motion
under
of
entry
judgment
of ac-
shall order
of
person to
or who
such a
quittal
charged in the
of one or more offenses
beverag-
the licensed
indictment,
complaint after
or
displayed
being
es are
sold or
on either
is closed if the
misdemeanor,
side
subject
provi-
class B
to the
a conviction
evidence is insufficient
sions of sections 22-31 and
22-32
a defendant’s
offense or offenses.
If
such
Any
twenty-one years
person
Code.
under
judgment
the close
at
motion
age may
restaurant
remain in a
where alco-
by
prosecution is
offered
of the evidence
sold,
accompa-
holic
are
if
may
granted,
offer evidence
legal guardian,
parent
nied
or
or if em-
having
right.
reserved the
waiter,
ployed
as a
the restaurant
food
waitress,
busgirl
busboy
food
or
3.
29-28-07
supervision
direct
of a
over
sale,
appeal
engaged
years
the state
An
and not
From what
consumption
state
disposition, delivery
from:
or
of alco-
be taken
quashing
or
beverages. Any
1.
order
an information
where al-
An
holic
establishment
may employ
count thereof.
are sold
indictment or
ocholic [sic]
granting
twenty-one years
trial.
persons
eighteen
2.
order
new
An
arresting judgment.
age
capacity
3.
order
to work in the
of musicians un-
An
affecting
supervision
order made after
of a
over
An
der
twenty-one years
direct
right
age.
of the state.
substantial
proper-
granting
penalty
return of
5. An order
Section 22-31 establishes the
for a viola-
suppressing a
age
ty
suppressing
by person
or
tion of Section 3-5
admission,
accompanied
exceptions
twenty-one,
ordi-
confession
by
lists
to the
attorney
prosecuting
prohibitions.
a statement
Section 22-32 creates
nance's
pur-
appeal
asserting
taken for
that the
protecting
the licensee when an
method
pose
delay
is a sub-
age.
and that
misrepresents an
individual
appeal
There can be no
from a
reviewing
once the
court has found the
Flohr,
acquittal.
insufficient,
evidence legally
only
can,
“just”
remedy available for that court is
however, appeal
direction of a
“[a]n
an information or indictment or
count
Burks v. United
29-28-07(1).
thereof.” NDCC
This in
2141, 2150-51,
S.Ct.
dismissal,
cludes the
(A second trial is barred when a conviction
*3
label,
regardless of its
that has the same
appellate
reversed
an
court solely for
effect as an order
an information.
evidence).
lack of
prohi-
constitutional
Hogie,
(N.D.1988).
424
N.W.2d 630
against
bition
jeopardy
fully ap-
double
A
of this court holds that a dismis
plicable to state
criminal proceedings.
upon legal conclusions,
sal based
rather
Massey,
Greene v.
19,
437 U.S.
98 S.Ct.
than resolution of
factual element of
2151,
(1978).
“Legal consequences ordinarily flow actually happened, has what
what vantage party might have done from the Dakota, Plaintiff STATE of North Sanabria, hindsight.” court, (citations as it should, apparently assumed the truth of all exhibit, RITTER, relevant information J. Defendant Leonard though true, found it deficient. Even prove did that Kraft that information was the licensee December of North Dakota. date of the crime. 29(a) authorizes a acquittal “if the is insufficient such of- to sustain conviction
fense....” Since objection proba has one without ob dence if admitted without 1. State’s exhibit was admitted relevancy materiality. with the same jection value and be considered Unless tive as to proper We have effect as evidence]. of such rise to force and the admission error, 52(b), principle consistently circum iterated the see Rule level of obvious .the NDRCrimP, a find is sufficient Raywalt, stantial evidence ing 436 N.W.2d E.g. (N.D.1989), jury in a action. criminal it was evidence the entitled (N.D. 1980) Willson, Olson, [mostly (C.C.A. cir F. 488 290 N.W.2d Paine v. consider. N.D.1906) sufficient conviction cumstantial evidence murder]; introduced [inadmissible Allen, 237 N.W.2d objection, fact con establish the (N.D.1975) conclusively evidence sufficient troversy [circumstantial as the best evidence Noah, guilty of jury regularly to draw inference produced]; 83 S.D. Hannahs (1968) [incompetent burglary]. evi