183 N.W. 279 | N.D. | 1921
On November 13, 1920, the defendant was convicted in the district court of Ramsey county of selling intoxicating liquor to be used as a beverage, the alleged offense having been committed on the nth of July, 1920. This is an appeal from the judgment of conviction and from orders entered denying the defendant’s motions in arrest of judgment and for a new trial. There are only two questions presented on the appeal: First, that the defendant was not convicted in a legally constituted court; and, second, that the court erred in denying the defendant’s motion for a new trial on the ground of newly discovered evidence. The first question was raised at the beginning of the trial by an objection entered on the record by the defendant’s attorney going to the jurisdiction of the court to proceed in the case in any manner on the ground that the court .was not legally constituted, by reason of the fact that chap. 16 of the Daws of the Regular Session, 1919 (the Judicial
It is next claimed that the court erred in denying the defendant’s motion for a new trial. The motion was supported by the affidavit of one Severtson, whose testimony would embrace the newly discovered evidence, and by the affidavit of the defendant. It appears that at the trial the state produced as its principal witness one Ole Tufte. He testified that on the day the offense was alleged to have been committed, he and his wife drove into the village of Southam, where the defendant was running a store; that it was on Sunday afternoon, and he stopped his car a short distance from the defendant’s store; that he saw a man there of whom he inquired as to a place where he could get some whiskey. The man replied that he did not know, but he would see; and that thereupon this man, together with the witness, Tufte, entered the defendant’s store where the liquor was purchased, the witness giving a check for it which was written by the defendant himself. Upon his cross-examination the witness Tufte stated that the name of this man was Severt Severtson and that he resided in Southam. Severtson’s name was not indorsed on the information as a witness, nor was he called by the state. It appears, however, from the testimony of the sheriff, that a subpoena for Severtson had been in his hands two days before the trial, but he had not served it for the reason that the deputy had been unable to locate him. In Severtson’s affidavit he says that he is well acquainted with Koonce and with Tufte; that he never was in the defendant’s store at Southam with Ole Tufte on a Sunday in the summer of 1920; that he saw Tufte on a Sunday in the summer of 1920 buying ice cream and carrying it out of the