103 N.W. 566 | N.D. | 1905
The defendants were tried and convicted under an information charging them jointly with keeping and maintaining a common nuisance, and they have appealed from the judgment.
The record shows that at the trial the state, in support of its allegations that the defendants kept and maintained a place where intoxicating liquors were sold, introduced, in connection with the testimony of one Daley, a deputy sheriff, a United States government license for the sale of malt liquors, which he had taken from the walls of the building in which it is alleged the defendants maintained the nuisance. The trial judge instructed tire jury as to the legal effect of the license, as follows: “I charge you that the finding of a United States license for the sale of malt liquors on these premises .and in the possession of these defendants is prima facie evidence of their guilt, if you find proof, to your satisfaction beyond a reasonable doubt, as to that and as to the other material allegations. By prima facie evidence is meant evidence which you must receive as conclusive, unless the same is explained by the defendants by other evidence produced before you in the case.” That part of the foregoing instructions in which the court defined the legal effect of the term “prima facie evidence” is assigned as error.
The instruction attempts to give effect to that part of section 7614, Rev. Codes 1899, which provides that “in all cases, other than those when intoxicating liquor is sold by virtue of the provisions of this chapter, the fact that any person engaged in any kind of business has or keeps posted in or about his place of business a receipt or stamp showing payment of the special tax levied under the laws of the United States upon the business of selling distilled; malt or fermented liquor, or the holding of a license from the government of the United States in the name of any person, persons or corporation to sell intoxicating liquor shall be held and deemed prima facie evidence against such person, persons or corporation, that he or they or it are keeping for sale and selling intoxicating liquors contrary to law.” In our opinion the instruction
Judgment reversed an-d new trial ordered.