92 N.W. 480 | N.D. | 1903
The defendant was informed against by the state’s attorney of Cass county for maintaining a common nuisance in violation of section 7605 of the Revised Codes. The jury returned a verdict of guilty. Defendant moved for a new trial upon the alleged insufficiency of the evidence to sustain the verdict, errors in the admission of testimony and in the instructions, which motion was denied. The trial court imposed a sentence of 90 days in the county jail and a fine of $200 and costs of prosecution. The defendant has appealed from the judgment, and relies upon the same grounds in this court which were urged in support of his motion for new trial.
The first ground urged is that “the verdict of the jury is unsupported by the evidence.” Section 7605, Rev. Codes, which defines the offense of which the defendant was convicted, so far as material, reads as follows: “All places where intoxicating liquors are sold, bartered or given away, in violation of any of the provisions of this chapter, or where persons are permitted 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 chapter, are hereby declared to be common nuisances; * * * and the' owner or keeper thereof shall upon conviction be adjudged guilty of maintaining a common nuisance.” The offense which is made punishable by the above section is the keeping of a place where the forbidden acts are committed. In referring to this section in State v. Dellaire, 4 N. D. 312, 60 N. W. Rep. 988, this court said: “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 beverage. They are evidences of the offense. It is keeping the place where these things, or some of them, are done, that constitutes the offense. Proof of keeping by the defendant, and that any one of the prohibited acts was done by the defendant in such place during such keeping, would make the offense complete.” In this case it is undisputed that the place at which the information alleged the prohibited acts were done was owned 'by and in thé possession and control of the defendant; in other words, there is no dispute that, the defendant was the owner and keeper of the place. The vital question was whether it was a common nuisance, under the above section. The state relied upon proof of unlawful sales by defendant to give the place that character. We have examined the evidence on this point, and find that the verdict of the jury has ample support. Andrew Prior, a witness
Error is assigned upon the exclusion of the testimony of two witnesses, -offered by the defendant, as to his reputation. Malcolm Morris testified: “I have been personally acquainted with T-hoemke for the last three years. We live between six and seven miles apart. I have passed Thoemke’s farm. It is a good farm, in good cul
It is also urged that the charge of the court in reference to the several kegs of beer which were drank upon the defendant’s premises was misleading and prejudicial, particularly that portion relating to the keg of beer which defendant obtained and delivered to his hired man and charged to him. The particular language of the instruction excepted to is as follows: “It is claimed by the state that, as one of the ingredients of the offense charged was a sale to the defendant’s hired man of a keg of beer under the circumstances as disclosed by the evidence. In that behalf I charge you that, if you believe from the evidence beyond a reasonable doubt that dedendant procured a keg of beer or other intoxicating liquor, so that the title and ownership thereof was in him; and that thereafter, on the premises mentioned in the information, he transferred the title to the same to his hired man by charging its value to him, or in any other manner constituting a sale thereof, then he would be guilty of selling intoxicating liquor in violation of law.” The above instruction is based upon the testimony of the defendant himself, and we are unable to see wherein it is erroneous. The defendant admits that beer was drank upon his premises at the several times testified to
Finding no error in the record, it follows that the judgment and conviction must be affirmed, and it is so ordered.