Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1909-12-09

State of North Dakota, respondent
VS. G.. HI. Stevens, appellant.

State of North Dakota, respondent,
vs.. c. H. Stevens, appellant.
l.. Under section 1868, Revised
Codes 1905, the states attorney or
Nelson county issued his subpoena
requiring one L., witness, to appear
before him for the purpose of giving
testimony relative to any violations
of the prohibition laws. Pursuant
thereto, L. appeared and gave tes-
timony which was reduced to na1a-
tive form and was subscribed and
sworn to before the states attorney.
Such testimony tended to disclose
that defendant had maintained a liq-
uor nuisance, weheupon the states at
torney, pursuant to law, filed such
testimony together with his formal
information charging the defendant
with the commission of such offense
with a police magistrate who issued
a warrant for defendants arrest. A
preliminary examination resulted IN
holding defendant to answer such
charge in the district court, in which
latter court he was convicted and
sentenced accordingly. 1t is contend
ed that such section 1858 attempts
to confer judicial powers upon the
states attorney and hence CONTRA
venes the provisions OF section s.,
Of the constitution of North Dako-
ta
Held, for reasons more fully stat
ed in the opinion, that such question
is not properly before us as the wit
ness L., does not, and defendant nan-
not. raise the same.
2. The testimony of the witness
L., was taken the form of a depo-
sition and the fact that it was in
narrative and not by questions and
answers does not rendere the same
ineffective.
3. The information filed with the
committing magistrate examined and
held sufficient to state an offense when
tested by the liberal rule governing
complaints before such magistrates
following State VS.. Barnes, 3 N. D.,
131, which decision is held applica-
BILE and controlling in the case at
bar.
4. The deposition of the witness
L. is held to be substantial COM
pliance with the statute, although, If
considered as a complaint or inforn1a
ton it would be insufficient. Such
deposition is no part Of the infor-
nation and whether it states or shows
an offense is immaterial.
5. The informatton under which
defendant was convicted in the dis
trict court charged in effect, that con-
tnuously between certain designated
dates defendant kept and maintained
a place particularly describing it)
where intoxicating liquors were con-
tinuously sold, bartered and given
away, and where persons were per-
united to resort for the purpose Of
drinking intoxicating liquors as a
beverage, etc. -.
Held, that such information is SUI
ficiently specific as to the time Of the
commission Of the offense, as tho
same states that such nuisance was
kejt and maintained continuously on
each of the intervening days between
the dates mentioned.
6. The defendants motion for
was properly denied.
The affidavit upon which such motion
was based made no showing as to the
probability of procuring the testimony
of the absent witness in the event
Of a continuance; nor does it show
or state that the facts sought to be
proved by such witness were true,
nor defendants inability to establish
such facts by others.
z. The states attorney made GER
tain remarks in his argument to the
jury wherein he referred to the de-
PENDANT as zone OF the most AFRO
CANT, defiant, outspoken violators of
the prohibition law that I believe
there is in the county of Nelson"
and also containing the statement,
eve have brought into this court
upon this charge the prince Of blind
piggers of Nelson county"
Held, the evidence not being before