#### STATE OF NORTH DAKOTA, Respondent, v. ROY D. HAND and Clarence Maynard, Appellants.

(193 N. W. 148.)

Intoxicating liquors — evidence held to sustain conviction for violation of prohibitory law.

1. In a criminal action for a violation of the State Prohibitory Law (Laws 1921, chap. 97), the evidence is examined and *held*to sustain the verdict of guilty.

Indictment and information — unnecessary to negative exception in statute unless essential to definition of offense.

2. Following State v. McDaniels, ante, 648, just decided, held that in an information for a statutory offense, it is not necessary to negative an exception in the statute unless the negative of the exception is an essential part of the definition of the offense.

Criminal law — error cannot be predicated on admission of evidence in joint trial inadmissible as to one defendant unless objected to.

3. Where on a joint trial evidence inadmissible as to one of the defendants is received without objection and submitted to the jury without instruction as to its consideration, the matter not having been called to the attention of the trial court by a request for an appropriate instruction or otherwise, error cannot be predicated thereon.

Opinion filed April 3, 1923.

Criminal Law, 16 C. J. § 2500 p. 1059 n. 38; 17 C. J. § 3333 p. 66 n. 15; Indictments and Informations, 31 C. J. § 269 p. 720 n. 58; Intoxicating Liquors, 33 C. J. § 502 p. 758 n. 80.

Note. — On necessity of negation of exceptions in statute defining offense, see 14 R C. L. 188; 3 R O. L. Supp. 192; 4 R O. L. Supp. 886; 5 R O. L. Supp. 752; 15 R O. L. 389; 3 R 0. L. Supp. 453.

Appeal from the District Court of Mountrail County, Moellring, J.

Defendants were convicted of violating the State Prohibition T^aw, *678and appeal from tbe judgment of conviction and from an order denying a new trial.

Affirmed.

FunKe, *Campbell &*Eide, for appellants.

*R. E.*Swendseid, State’s Attorney, and *George F. Schafer,*Attorney General, for respondent.

Nuessle, J.

The defendants were convicted of violating tbe laws of this state prohibiting- tbe manufacture or possession of utensils designed or intended for use in tbe unlawful manufacture of intoxicating liquor (Laws 1921, chap. 97), and the appeal is from tbe judgment of conviction and from tbe order denying their motions for a new trial.

It appears from tbe record that tbe state’s attorney of Mountrail county obtained a search warrant directed to an unoccupied building some 3 miles from tbe village of Sanisb. This warrant was put into' the bands of tbe sheriff. On Monday, tbe 15th of August, be and his deputies searched the premises under tbe warrant. They found no one in possession, but they did find in tbe unoccupied bouse 3 barrels of “mash” and 10 gallons of syrup. This building was situated in a coulee more or less surrounded by brush and trees, and remote from and out of sight of tbe highway. Tbe officers did not disturb tbe premises or any of tbe property therein. Tbe sheriff left, but tbe deputies concealed themselves about tbe place awaiting tthe return of anyone who might be interested in tbe mash. About midnight Monday night the defendants, Hand and Maynard, appeared on tbe scene with a team and several barrels of water. This they emptied into a dry well located near-one comer of tbe building, and Maynard said to Hand, “This is tbe first time I have ever hauled water to put into a well.” Tbe officers, without making tbeir presence known, permitted Hand and Maynard to depart. On Wednesday night between 1 and 2 o’clock, a team and wagon was again driven to the premises and three men carried various articles from the wagon into tbe building where tbe mash was. Owing to tbe darkness it was impossible to see who tbe men were or wliat any of them carried. In a few minutes tbe officers also went into tbe building. There they found tbe defendants, Hand and Maynard, and one Mummert, all of whom they arrested. Hand and Mummert were engaged in setting up some of tbe apparatus which bad been brought there. *679"When arrested some one of the three, in the presence and hearing of the others, said, “They had found this mash here and didn’t know to whom it belonged so they thought they would come out and boil it up.” The others said nothing. After the arrest the party went to Sanish, first loading up the apparatus which had been found and seized, and which consisted of a coil, a boiler, parts of a compresser tank, a gas stove and various other articles. The officers destroyed the mash in the barrels excepting only a portion of it which they put in a jug and loaded into the wagon. In going to Sanish, Maynard drove the team. On the way Hand took the jug containing the sample of mash and tried to destroy it, but was prevented from doing so. When they arrived at Sanish, Hand said to his wife, “I was out starting to boil out a little brew, and got picked up, and I will have to go to Stanley (the county seat).”

All three of the men were taken before a justice of the peace. They waived examination and were held for trial at the next term of the district court, but gave bail and were released. At that term the state’s attorney filed his information charging them jointly with the commission of “the crime of manufacturing and possessing utensils and substances designed and intended for use in the unlawful manufacturing of intoxicating liquors committed as follows, to wit:

> ■ “That at said time and place the said Roy D. Hand, Otis Mummert and Clarence Maynard and each of them did wilfully and unlawfully manufacture and have in their possession a large iron boiler, copper coil, gas burner, pressure tank, condenser and mash then and there designed and intended for use in the unlawful manufacture of intoxicating liquors for beverage purposes.”

When the state’s attorney moved the arraignment of the defendants, Mummert failed to appear and his bond was ordered forfeited. The defendants, Hand and Maynard, appeared and entered their pleas of not guilty. No objection was urged as against the information, either by demurrer or motion to set aside; nor was there any objection to the admission of any testimony on the ground that the information was defective. The case was moved for trial, and they were tried jointly. No request was made by either for separate trials. The jury found them guilty, and sentence was imposed. The trial court denied their motion for a new trial.

*680Tbe defendants urge that tbe verdict is against tbe evidence; that tbe information is bad because not negativing tbe exceptions in tbe statute ; that tbe statute under which tbe search warrant was issued is unconstitutional; that tbe court erred in ruling upon the objections to tbe admission of evidence; that there was error by reason of the court’s refusal to give certain requested instructions, and that tbe instructions as given were erroneous.

Considering first tbe question of tbe sufficiency of tbe evidence, it appears to us that on tbe record as made tbe jury were clearly warranted in returning their verdict of guilty. No evidence was offered on behalf of tbe defendants. No explanation of tbe peculiar circumstances was attempted. Tbe evidence of tbe state’s witnesses stood Avliolly uncon-tradicted. The sheriff testified that he bad seen stills used in the manufacture of intoxicating liquors in operation, and that tbe appliances which were seized at tbe time tbe arrests were made were parts of a still or might be used in connection with tbe operation of a still. From the whole record under all tbe circumstances as shown there is no question but that tbe evidence is sufficient to warrant tbe jury in returning their verdict.

It is contended by the defendants that tbe court erred in admitting* tbe search warrant in evidence. No objection was raised to tbe warrant or to its admission in evidence, therefore, no error can be predicated upon tbe court’s action in this respect. The other objections raised on account of the admission of evidence are without merit and need not be further considered.

It is further contended that the statute under which tbe search warrant was issued is unconstitutional. This objection was not raised at tbe time of trial. No objection on this ground was made either to tbe warrant or to tbe offer in evidence of any article seized under it. That being so, tbe attack on that ground is. in any event too late and cannot avail tbe defendants.

Tbe charge as given by tbe court was a written charge. Three requests for instructions were submitted. One, as to the fact that tbe defendants bad not seen fit to take tbe witness stand, w*as given by tbe court. A second, with reference to what must be found in order to enable tbe jury to return a verdict of guilty Avas refused in tbe form as requested but given in substance, as folloAVs: “If, therefore, you find *681from all tbe evidence in tbis case and beyond a reasonable doubt that either of said defendants did . . . wilfully manufacture and have in their possession any or all of the utensils and things described in the information and then and there designed and intended by him for use in the manufacture of intoxicating liquor or intoxicating liquors, then I charge you such defendant has committed an unlawful act and you should find him guilty, otherwise you should find him not guilty.” There was no error in refusing to give the instruction as requested in view of the fact that the above instruction, substantially incorporating all the matters included in the requested instruction, was given. The third instruction requested and which was refused by the court was manifestly improper under the evidence in the case, and there was no error in the court’s refusal to give the same.

The information in this case and the instructions of the court to the jury were in all substantial respects identical with the information and the instructions in the case of State v. McDaniels, just decided, ante, 648, 192 N. W. 974. The same objections there raised are advanced here. What, is said by the court there with reference to the information as to the negativing of an exception in a statute defining an offense, is exactly applicable in this case. We approve and affirm the rule therein laid down.

There needs to be considered only one other matter. On the trial, Alger, the deputy sheriff, testified that after the defendants were arrested the defendant, Hand, said to his wife, “I was out starting to boil out a little brew and got picked up and I will have to go to Stanley.” It does not affirmatively appear that this was said in the presence of the defendant, Maynard. However, no objection was made to the question in response to which this testimony was elicited, no motion was made to strike out the answer, nor was the court’s attention directed to it in any manner. In the charge the jury were instructed that “in determining upon the guilt or innocence of the defendants the jury shoidd consider *all*the evidence as bearing upon the guilt or innocence of each separately.” The defendant, Maynard, takes exception to this instruction contending that it is erroneous in view of the fact that the statement of Hand to his wife does not appear to have been made in the presence and hearing of Maynard. It is a sufficient answer to this contention that no objection was made to the admission of this testi*682mony, nor was tbe fact tbat it bad been so received pointed out in any Avay to tbe trial court, by request for an instruction tbereon or otherwise.

The judgment of conviction should be affirmed. It is so ordered.

Bronson, Ch. J., and Birdzell, Christianson, and Johnson, JJ., concur.