128 N.W. 1122 | N.D. | 1910
Appellant was, on the 26th day of May, 1910, convicted by a jury in the district court of Burleigh county of keeping and maintaining a common nuisance, in violation of § 9373, Rev. Codes 1905. There is no specific place set forth in the information where the nuisance was kept, but it alleges only that it was kept at a certain place located in the city of Bismarck,' in Burleigh county, Noi’th Dakota. The defendant demanded a bill of particulars showing the description of the place, building, or other structure where the alleged nuisance was kept, the kinds of liquor sold, when and to whom sold. The demand was not verified. The trial court 'denied the demand. The first four errors assigned by appellant relate to this ruling. The attorney general was permitted, over the objections of defendant, to ask questions which defendant claims assumed facts unproven and questions which were leading. The fifth, sixth, thirty-fourth, thirty-fifth, thirty-sixth, thirty-seventh, thirty-eighth, thirty-ninth, fortieth, forty-fourth, and forty-sixth errors assigned relate to the rulings on this class of evidence. The questions raised by the assignments of error hereinbefore mentioned are identical with the same questions passed upon by this court in the case of State v. Empting, decided at this term, — ante, —, 128 N. W. 1119, and what is said by the chief justice in that case disposes of the assignments of error hereinbefore mentioned in the case at bar.
The attorney general, over the objection of the defendant, was permitted to call as a witness, Ered Weir, whose name 'was not indorsed on the information. In this there was no error.
Section 9794, Rev. Codes 1905, reads as follows: “All informations filed under the provisions of this article shall be by the state’s attorney of the county or judicial subdivision, or by the person appointed to prosecute, as informant; -and said state’s attorney or person appointed to prosecute shall subscribe his name to said information, and indorse or .otherwise exhibit thereOn the names of all witnesses for the prosecution known to him 'to be such at the time of the filing of the same, but other witnesses may testify, in behalf of the
The attorney general informed the court that he had no knowledge of this witness at the time he filed the information.
See State v. King, 9 S. D. 628, 70 N. W. 1046; Hill v. People, 26 Mich. 496; People v. Hall, 48 Mich. 482, 42 Am. Rep. 477, 12 N. W. 665, 4 Am. Crim. Rep. 357; People v. Moran, 48 Mich. 639, 4 Am. Crim. Rep. 476; State v. Church, 6 S. D. 89, 60 N. W. 143; State v. Kent (State v. Pancoast) 5 N. D. 516, 35 L.R.A. 518, 67 N. W. 1052.
The information covers the time from January 1st, 1909, until May 18th, 1910, a period of one year, four months, and eighteen days. The attorney general, against the objection of defendant, was permitted to ask some of the witnesses this question: “TIow many times have you drunk malt or beer there in the last year and a half ?” The objection to the question that it embraced more time than was alleged in the information was overruled. This ruling, even if erroneous, is not prejudicial. The time inquired about was at best but a slight variance, and numerous witnesses answered substantially the same question without any objection on the part of the defendant. Pharo v. Beadleston, 2 Misc. 424, 21 N. Y. Supp. 989; Com. v. Dillane, 1 Gray, 483.
The motion to advise the jury to return a verdict of not guilty was properly denied. State v. Wright, 20 N. D. 216, 126 N. W. 1023 and cases therein cited.
No error was committed in permitting the state, after it had rested its main case, to reopen the case for the introduction of the testimony of A. P. McDonald. It is a familiar rule of district court practice for the trial court, at any time prior to the close of the case, in the exercise of its judicial discretion, to reopen the case and receive further evidence. No testimony had been introduced at that time by the defendant, and he could not have been prejudiced by the ruling complained of.
The witness McDonald’s name was on the information, and defendant could not have been prejudiced or surprised by the fact that he was called as a witness after the state had rested. State v. Martin, 89 Me. 117, 35 Atl. 1023; McDonald v. Smith, 14 Me. 99; Ruggles v. Coffin, 70 Me. 468; Turner v. St. John, 8 N. D. 245, 78 N. W. 340.
These affidavits are purely impeaching, and the general rule is that such evidence does not furnish a good ground for granting a new trial. Libby v. Barry, 15 N. D. 286, 107 N. W. 972; Heyrock v. McKenzie, 8 N. D. 601, 86 N. W. 762; Stoakes v. Monroe, 36 Cal. 388, 2 Mor. Min. Rep. 246; 14 Enc. Pl. & Pr. p. 791.
At any rate the motion for a new trial, based on these affidavits, was addressed to the.sound judicial discretion of the trial court, and the action of the trial court upon the motion is conclusive upon this
The question of the insufficiency of the evidence to justify the verdict is not properly raised.
. Finding no prejudicial error, the order appealed from is affirmed.