In re Schrage ( 1917 )

Salinger, J.

I. Three points are urged upon us: (1) That the evidence does not sustain the verdict of the jury finding that plaintiff was an inebriate. (2) The court failed to in,struct that appellant “must be found guilty of the charge beyond a reasonable doubt.” (3) It was error to admit evidence of drunkenness after the filing of the information or petition, without an amendment thereto.

We have given the record a careful reading, and find the evidence to be in such state as that we may not interfere with the finding of the jury that appellant was an inebriate.

1. Drunkards : hospital for inebriates: commitments quantity of proof. II. The complaint of failing to charge that the evidence must establish what is charged beyond reasonable doubt, invokes what rules in criminal cases only. This proceeding is a civil proceeding. Code Supplement, 1913, Sec. 2310-al3.

2. Drunkards : hospital for inebriates: commitments: evidence. III. The complaint that petitioner was permitted to put in evidence of drunkenness subsequent to the filing of the petition, without an amendment thereof, rests upon another misconception. This is not an adversative proceeding. It is not instituted to deprive defendant of some right he possesses, nor to punish him. The controlling question is Avhether he is in such condition as that he should be sent to a hospital, for his own benefit and that of the state. The ultimate inquiry is, necessarily, whether he is in such state at the time when the verdict is being considered. Had he been never so much of a drunkard in the past, if he showed that, at the time of the hearing, he had become a sober man, he should not be sent to the hospital. It should follow that it is proper to take into consideration whether, at the time when the verdict is being formed, he not only Avas, but still is, a fit subject for commitment. It may be conceded that a foundation for introducing the evidence of drunkenness later than the filing of the original petition should be by amendment. We are unable to find that failure to amend here was or could have been prejudicial. The appellant was certainly in position to deny this testimony of subsequent acts of drunkenness. If he felt he needed and could obtain other testimony in denial, he could have saved that right by applying for a continuance, and coming to us with a complaint that it had been refused him. He made no such application.

3. Appeal and error : notice of appeal: notice preceding judgment. As the State insists, and we find, that this was a civil proceeding,- the appeal of the appellant, perfected after his motion for new qaq peen overruled, entitles him to a hearing here, though he appeal before a final judgment was entered. Wherefore, the motion to dismiss the appeal is denied.

We find no reversible error, and the action of the trial court must her — Affirmed.

Gaynor, C. J., Ladd and Evans, JJ., concur.