State v. Cook

JOHNSON, J.

Defendant was prosecuted and convicted upon an information charging the crime of bootlegging. He made separate motions to set aside the information; to dismiss at the close of the case; and that the jury be advised to return a verdict of not guilty. A motion for a new trial was also made. All were denied, and a demurrer to the information was overruled. The defendant appeals from the sentence and judgment of the trial court entered upon the verdict of the jury; also from the orders overruling the demurrer and denying the motions aforesaid.

The principal contentions of the defendant may be, and were by his counsel on the oral argument, summarized under the following propositions; that the state failed to prove that the liquid alleged to have been sold by the defendant was fit for beverage purposes; that the substance was intoxicating; and that the liquor was sold for beverage purposes.

The testimony of the state tends to show that on or about July-13, 1923, the defendant sold and delivered to Emil Nelson, in the presence of Harrison Garter, both prohibition agents, a gallon of liquid which he represented to be alcohol; that the sale was made, by prior appointment, in a public street in the city of Eargo. A chemical analysis of the liquid disclosed, according to the testimony of the state’s chemist, that it contained 93.85 per cent by volume of ethyl alcohol; that by use of the most delicate method, the chemist found about J of 1 per cent of acetone and a slight trace of other organic impurities. This chemist, on cross-examination, amplifying bis testimony on tbe direct examination, stated tbat tbe presence of tbis infinitesimal amount of 'acetre and other organic matter was immaterial, and tbat the substance, exclusive of tbe alcohol therein, was, to all intents and purposes, ordinary water. There was no trace of ethyl alcohol. A druggist testified in behalf of the defendant that he had also made a chemical analysis and found that the liquor contained 94 per cent of alcohol, about ¿ of 1 per cent of acetone and less than of 1 per cent of diethylthylate. This witness explained that acetone acts as a solvent and that it is injurious to the membranes of the stomach. The other substance, he said, was one of the denaturants used by the government to render alcohol unfit for beverage purposes; that the effect of consuming that substance would be a gastric disturbance, vomiting. He stated that the substance sold by the defendant was not alcohol, as designated by the government, and that the liquid was “not exactly” fit for beverage purposes. On cross-examination, this witness, however, testified that a trace of acetone was one of the “impurities you expect to find in ordinary alcohol.” He said, further, that he supposed that this “ordinary alcohol,” which had been described in the testimony, “is being used for beverage purposes right along.”

The defendant assigns nineteen errors. With a few exceptions, with which we shall expressly deal in this opinion, these alleged errors are all embraced within the three propositions heretofore stated.

It is first contended that the trial court should have set aside the information upon jurisdictional grounds for the reason that the defendant had not had preliminary hearing on the charge of bootlegging. The defendant had a preliminary hearing before a justice of the peace on a charge described in the complaint as bootlegging; the preliminary complaint contained also the following language': “that at the said time and place the said defendant did, wilfully, unlawfully and feloni-ously sell and deliver to this affiant . . . one gallon of alcohol.” Section 10,530, Comp. Laws 1913, subsection four, provides that the complaint must state “the acts or omissions complained of as constituting the crime or public offense named.” The specific offense named in the criminal complaint before the committing magistrate was bootlegging. It is urged that the district court was without jurisdiction because the complaint failed to allege that the sale was made upon premises not owned, kept, maintained or controlled by the defendant, substantially in tbe language of the bootlegging statute, chap-te? 194, Sess. Laws 1915. Defendant insists that this allegation is essential to the validity of the criminal complaint.

There is no merit in defendant’s contention. The offense of bootlegging was specifically named in the complaint. It may be conceded that not all the particulars requisite to a valid information were stated, and, yet, it does not follow that the district court had no jurisdiction upon the ground that, in legal contemplation, there had been no preliminary hearing. State v. Hart, 30 N. D. 368, 152 N. W. 612; State v. Webb, 36 N. D. 235, 162 N. W. 368; State ex rel. Peterson v. Barnes, 3 N. D. 131, 54 N. W. 541. After the testimony had been taken before the magistrate, the defendant was held to answer the charge of bootlegging. The complaint clearly apprised the defendant of the charge against him. It need not state the particulars of the offense with the same technical accuracy as an information. The former instrument is usually prepared by persons without technical knowledge of the law and should not be examined with the same exacting scrutiny as the information, which constitutes the basis of the prosecution.

It is next contended that the demurrer to the information should have been sustained. The demurrer is based upon the ground that the information charges the crime of bootlegging as a second offense, although the information upon its face shows that there could not be or have been a second offense thereunder; and that the information shows upon its face that the offense charged therein appears to have occurred before the alleged prior conviction of the defendant. The information reads as follows:

“That at said time and place the said defendant did wilfully, unlawfully and feloniously sell and deliver to one Emil Nelson one gallon of alcohol, said sale and delivery not being made upon premises kept, maintained, or controlled by the said defendant; that heretofore, to-wit: on the '6th day of January, 1924, this defendant was convicted in the district court of Cass county, North Dakota, on the charge of bootlegging and was duly sentenced by the judge of the district court to serve a term of five months in the Cass county jail and to pay a fine of $200, and to serve thirty days additional in event of the nonpayment of said fine.”

While it is true that there is some inconsistency in the dates appearing upon the face of the information we do not think there is any merit to counsel’s contention upon this point. It clearly appears that the state intended to charge a second offense, based upon a conviction had subsequent to the date on which the sale took place which is the basis of this prosecution. The trial court held that a conviction subsequent to July 13, 1923, on another charge, would not be a first offense, so as to form a basis, in the instant case, for the claim that the offense in the case at bar was a second offense. The court, accordingly, excluded all evidence of the alleged conviction of January 16, 1924. The defendant could not have been misled or prejudiced in any way by the inartificial language of which he complains; and the trial court correctly denied the motion.

It is contended that an issue was presented by the defendant’s plea which was not disposed of by the jury. Defendant contends that he pleaded not guilty and a former conviction jointly as a bar; that this plea raised two issues of fact, first the issue of not guilty: and second, the issue of former conviction. The defendant’s plea was as follows: “the defendant, through his counsel, now pleads not guilty to the crime charged against him and prior conviction.” The statute prescribes the form of the plea. Subdivision 3 of § 10,147 provides that when the issue of prior conviction is raised, the defendant must make his record in the following language “the defendant pleads that he has already been convicted of the offense, charged in this information by the judgment of the court of-rendered at-, on the - day of-, 19 — The sufficiency of the plea is questioned by the state, but this question need not be decided. When the state attempted to establish a prior conviction, in order to prove a second offense, the evidence was excluded upon objection by the defendant. The state was not permitted to introduce proof tending to establish a prior conviction; nor did the defendant offer evidence of a former conviction. It is evident that no issue was presented to the court and no evidence was introduced or offered by either sido upon the question. There was no prejudicial error committed with respect to the issue of a prior conviction.

It is urged that tbc motion in arrest of judgment should have been granted upon the grounds, among others; that the facts stated in the information did not constitute a public offense because there is no specific description of the premises on which the sale is alleged to have been made; and because the proof fails to show that the sale took place on premises not owned, kept, maintained or controlled by the defendant, the proof being that the sale took place upon a public street in the city of Fargo. The ruling of the court upon this motion was correct. In the case of State v. Ehr, 52 N. D. 946, 204 N. W. 867, an instruction was approved in which the jury was informed by the court that it must find that the alleged sale took place within the city of Hankin-son, in Richland county. In that case the information, as originally drawn, charged that the offense had been committed in Richland county; a bill of particulars was demanded by the defendant whereupon the state alleged that the offense took place in the city of Hankinson. No bill of particulars was demanded in the instant case; no attempt was made on the part of the defendant to compel the state to make the charge, more definite and certain in any particular. The information charges the offense to have been committed within Oass county. In the circumstances, the charge is’ sufficient, the information valid, and the ruling of the trial court upon the motion in arrest of judgment, on this specific ground, is correct. With reference to the other-ground, the case of State v. Ehr, supra, is controlling against defendant’s contention. A sale made upon the public streets of a municipal corporation is made upon premises not owned, kept, maintained, or controlled by the defendant and is within the prohibition of the bootlegging statute. The sale did not take place in the street in front of premises owned by the defendant. The contention appears to be in the ease at bar that because the defendant was a taxpayer, he had such an interest in the streets of the city of Fargo, that he either owned, kept, maintained or controlled them within the purview of the bootlegging act. We are satisfied that the contention is wholly unsound and the ruling of the trial court was clearly correct. We see no reason for re-examining or receding from the holding in State v. Ehr, supra. No arguments and no authorities have been presented which have in any respect weakened our confidence in the correctness of the rule there adopted.

It is next urged that tbe trial- court erred in denying tbe motion for a new trial. This motion was based upon eleven assignments of errors; one of such assignments is based upon tbe contention, which, we have already resolved in favor of the state, that it was error to instruct tbe jury that tbe defendant bad no right to sell liquor in the streets of tbe city of Fargo. Other grounds have already been disposed of; only one remains to be considered. It is contended that tbe verdict was contrary to law; that the facts proved did not constitute tbe crime of bootlegging that no intoxicating liquor, within tbe prohibition of tbe statute, was sold; and that the offense committed, if any, is entirely different and distinct from that charged in tbe information. It is this assignment which raises tbe only substantial question in tbe law suit. Tbe defendant specifically contends that tbe liquid sold by tbe defendant is not alcohol, does not belong to tbe first class enumerated, in § 1 of chapter 268, Sess. Laws 1923, and is not, therefore, presumptively intoxicating; that it was incumbent upon tbe state to prove not only that tbe liquor contained more than of 1 per cent of alcohol, but, in addition, that it was fit for beverage purposes; and that tbe state clearly failed upon tbe last point. Defendant also contends that there is no evidence that tbe liquor was sold for beverage purposes.

It is undoubtedly a scientific fact that minute traces of acetone are often found in liquor which is, notwithstanding, known to tbe trade as alcohol. Tbe minutest quantity of that substance does not destroy tbe quality of tbe liquid as alcohol in tbe trade acceptation of tbe term. We have summarized tbe pertinent evidence. We are satisfied that there is abundant proof from which tbe jury were justified in finding that the liquid sold by tbe defendant was alcohol within tbe meaning of § 1 of chapter 268, Sess. Laws 1923, and was therefore, presumptively intoxicating. Having offered evidence tending to show that tbe liquid was alcohol, it was not necessary to prove that it was sold for beverage purposes, or that it was fit for beverage purposes. See State v. Schuck, 51 N. D. 875, 201 N. W. 342. Tbe trial court did not err in refusing to grant a new trial.

When tbe state bad concluded tbe direct examination of its chemists, -counsel for tbe defendant suggested that tbe cross-examination be deferred until the chemist who made the analysis and later testified in belialf of tbe defendant, could make bis report. Tbe court did not accede to tbe request and, commenting thereon, said in tbe presence of tbe jury:

“I would like to get in as much time as we can, but if anything could be gained for you, I would gladly extend tbe courtesy to you. I find, from my experience, it is largely from wbat your man will sa.y. Tbis man bas made bis examination, and bas arrived at a certain rosiilt, and you could examine bim from now until to-morrow, and bis testimony would undoubtedly be tbe same, because be has bis record on tbe subject, but, now, you have bad examinations made, and if your man has arrived at a different conclusion, then it is a question for the jury as to who is right and who is wrong.”

Tt is contended that tbis language was prejudicial. It may be conceded that tbe remarks were not necessary and that it might have been as well to have refrained from making them. No objection or exception was made by tbe defendant at tbe time and no cautionary instruction requested from tbe court. We are convinced, however, that no prejudice resulted. Tbe defendant cross-examined tbe witness fully. Tbe evidence overwhelmingly supports tbe verdict of conviction; indeed, we do not see bow any other verdict could, in good faith, have been returned. To reverse on tbis ground would be wholly unjustifiable.

In defining tbe crime of bootlegging, tbe court omitted tbe word “owned” from the' definition. Otherwise, the instruction was in tbe language of the statute. Tbe act, so far as material, reads:

“Any person who shall sell or barter any intoxicating liquor upon any premises or place, public or private, within tbe State of North Dakota, not owned, kept, maintained or controlled by bim.” There was no testimony that tbe sale was made at any place except in a street in Fargo; tbe court said to tbe jury that a sale in tbe streets of Fargo, if made, would constitute bootlegging. Tbis .is a correct statement of tbe law. No prejudice could possibly have resulted from the omission of tbe word “owned.”

There is nothing in tbe opinion of tbis court in tbe case of State v. Cook, ante, 429, 206 N. W. 186 (she appears to be tbe wife of bis defendant), inconsistent with tbe views herein expressed. She wa's charged with selling alcohol. Tbe uncontradicted testimony of the state’s expert witness in that case was that tbe liquid was not alcohol, but a compound unfit for beverage purposes because of tbe presence therein of 3 per cent of acetone. There was no testimony that tbe liquid was alcobol, in either tbe trade or scientific sense. All the testimony on tbe subject was to the contrary.

Some errors assigned have not been discussed in this opinion, but they are so clearly devoid of merit that we deem it unnecessary to consider them.

The judgment is affirmed.

ChexstiaNSON, Ob. J., and Buree, Birdzelu, and Nuessle, JJ., concur.