60 N.W. 988 | N.D. | 1894
Lead Opinion
The state sued out a writ of error from an order sustaining the defendant’s demurrer to an indictment, which, omitting the formal parts, charged the defendant with “the crime of keeping and maintaining a common nuisance, committed as follows: The said F. W. Dellaire and Charles White, on the 1st day of January, A. D. 1892, and at divers times up to and including January 10th, 1894, in this' County of Stutsman and State of North Dakota, did keep a place, to-wit, the certain brick building known as the ‘Tom Driscoll Building,’ situated on lot 8 in block 24, according to the original plat of the City of Jamestown, in said.county, in which place intoxicating liquors were kept for sale, and where persons were permitted to resort for the purpose of drinking intoxicating liquors as a beverage, and where intoxicating liquors were sold contrary to the form of the statute
Referring now to the first point, it has been repeatedly held that, when it was sought to prosecute a party for the crime of selling intoxicating liquors as a beverage, the indictment should state the names of the parties to whom such liquors were so sold, or excuse the omission. But this rule is so far from uniform that it is not even possible to say upon which side of the question the weight of authority is arrayed. In a note to Section 464, Black, Intox. Liq., the authorities for and against the position are cited in great numbers. In this case the offense charged is not selling intoxicating liquors, but keeping and maintaining a common nuisance. Section 13 of our prohibition statute (Chapter 110, Laws 1890) de'clares that “all places where intoxicating liquors are sold, bartered or given away, in violation of any of the provisions of this act, or where persons are premitted 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 act, are hereby declared to be common nuisances,” and it is further provided that the owner or keeper of such place shall, upon conviction thereof, “be adjudged guilty of keeping a common nuisance.” 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
The statute already quoted requires, in order to constitute the offense charged, that the intoxicating liquors be sold “in violation of any of the provisions of this act, or that such intoxicating liquors be kept for sale in violation of this act.” The indictment in this case ends with the usual formula: "Contrary to the statute in such case made and provided.” This was not sufficient. In order to constitute the crime of “keeping and maintaining a common nuisance,” as here used, it is not enough to violate some other statute. The liquor must be sold or kept for sale in violation of some provision of Chapter no of the Laws of 1890, and the indictment should so state. Still, the demurrer should not have been sustained upon that ground, because the indictment did allege in the words of the statute that defendant in error kept a place where persons were “permitted to resort for the purpose of drinking intoxicating liquors as a beverage.”. If the state had proved that persons were so permitted to resort to such place while so kept by defendant, it would have been entitled to a conviction, because proof of that fact would have been as effective to establish the crime as proof of all the facts set forth in the statute.
But the last objection to the indictment is, in the opinion of the writer hereof, fatal. It is not sufficiently specific as to time.
Concurrence Opinion
Judge Wallin and myself, while we concur in the opinion of the Chief Justice in all other respects, are unable to agree with him in his view that the indictment is insufficient on the ground that the keeping of the place, and the resorting of persons to such place, for the purpose of drinking intoxicating liquors as a beverage, are not alleged to have been contemporaneous. The allegation is that the defendant, at certain specified times, “did keep a place * * * where persons were permitted to resort for the purpose of drinking intoxicating liquors as a beverage,” At these times he not only kept a place, but he kept
Reversed.