State v. Hermanson, 132 N.W. 415

State v. Hermanson

132 N.W. 415 | N.D. | 1911

Goss, J.

The defendant, Amos Hermanson, appeals to this court from a judgment entered in the county court of increased jurisdiction for Ward county on November 22, 1909, imposing six months’ imprisonment with a fine of $800 and costs, and further imprisonment in default of payment of fine. The information charged the defendant with keeping and maintaining a common nuisance, a saloon, at a place particularly described.

*126Many errors are assigned, but the ones chiefly relied upon are those* relating to the admission of evidence of judgments of conviction entered* in the magistrate courts in the city of Minot, which magistrate proceedings were had under ordinances of said city, identical in provisions and language with the statutes of this state under which this prosecution is had. The ordinances provided, following approximately the language of the statutes, that premises within said city wherein intoxicating liquors were kept for sale, sold, or given away as a beverage, or wherein persons were permitted to resort for the purpose of drinking any intoxicating liquors as a beverage, were declared nuisances,, and provided a penalty for the keeping and maintaining of the same. Such ordinances were received in evidence. During the period of time described in the information, two complaints were laid against the defendant in the magistrate courts and warrants of arrest issued; the defendant being twice arrested thereon. He, acting in person, pleaded guilty under the city ordinance charges, on which judgments were entered adjudging him guilty and fining him; he promptly paying both fines. The record of said proceedings, consisting of complaints, warrants, pleas, and sentences under said ordinances, was received in evidence over the objection that no foundation was laid therefor, and that the same was incompetent, irrelevant, and immaterial. The foundation for the admission of such documentary evidence consisted of testimony identifying defendant with the place alleged to be the nuisance, his sales of beer therein, a description of the premises corroborative of the nature of said illegal business there maintained, the congregation at that place of persons to buy beer and their purchase of it, their intoxication and the presence of intoxicated persons in numbers congregating there, the arrest of the defendant at such place by the chief of police on the warrants on two different occasions under such prosecutions based on violations of said city ordinances, and defendant’s statements at the times of his arrest to the chief of police, that he was the person running the place, and the statements in the magistrate courts to the same effect, and that he handled beer there, and that he pleaded guilty to the charges laid against him. All these proceedings were had during the month of August, 1909, for. offenses under the ordinances alleged as occurring in said month, all being within the period of time charged *127in the information as the time during which the defendant is alleged to have maintained said nuisance.

The defendant is identified with the entire transaction in all details, and the foundation as to proof of facts is sufficient to entitle the magistrate’s judgment to be admitted as evidence in the nature of admissions of guilt, made by the, defendant, of acts necessarily admitted in his pleas of guilty, tending to prove him guilty of the crime charged under the statutes. Both magistrates testified to his statements made in connection with his pleas of guilty in their courts, and their docket entries made in due course of their official duties were also admissible as evidence thereof. The crime charged under the city ordinances was identical in nature, time, and place with that laid in the information. That the docket entries of the justices of the peace in the prosecutions under the ordinances were admissible under the foundation laid in the trial of this action, see 5 Ann. Cas. 716, collected under State v. Bringgold, 40 Wash. 12, 82 Pac. 132, and note immediately following; 12 Cyc. 418, 460, 474, and cases cited. See also 14 Am. Dig. cols. 1906 et seq., and 6 Decen. Dig. §§ 406 — 517 et seq. A plea of guilty, to be admissible in evidence, need not have been made in the prosecution in which it is offered. In addition to above authorities, see Beason v. State, 43 Tex. Crim. Rep. 442, 69 L.R.A. 193, 67 S. W. 96. Where a defendant’s plea of guilty of the theft of the articles taken in the commission of a burglary was admitted against him in a prosecution thereafter on the same facts for the burglary, defendant was convicted of the offense of theft, petit larceny, by his plea of guilty, and thereafter indicted and convicted for burglary in the taking burglariously of the same goods the subject of the petit larceny. Murmutt v. State, — Tex. Crim. Rep. —, 67 S. W. 508, also s. c. on former appeal in 63 S. W. 634; Beason v. State, 43 Tex. Crim. Rep. 442, 69 L.R.A. 193, 67 S. W. 96, s. c. on former appeal in 63 S. W. 633.

Such testimony being admissible as evidence in the nature of admissions of defendant, the charge of the court to that effect was proper. The charge excepted to and assigned as error is the following: “The testimony introduced in this case, showing that defendant has entered two pleas of guilty under the city ordinances of the city of Minot, may be used and considered by you as admissions of the defendant, and you *128.may give to such admissions such credit or weight as you may find it :is entitled to in connection with all the other evidence in the case.”

The instructions are challenged on the ground of being erroneous because said pleas of guilty are not to be considered as admissions of .guilt in the case on trial. The foregoing authorities are conclusive against defendant’s position, and dispose of the error assigned to instructions, as well as to the question of admissibility of the pleas of .guilty. Had the defendant, in some place other than a court, made the same statements as he did by his plea of guilty, declaring his guilt -of selling intoxicating liquor within the city of Minot on August 24, 1909, and August 28, 1909, no one would seriously question its admissibility on this trial, on the information charging him with there maintaining this common nuisance during the month of August, 1909.

The judgment appealed from should be affirmed, and it is so •ordered.

Morgan, Oh. J., not participating. W. J. Kneeshaw, District Judge of the Seventh Judicial District, sat by request.