Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1910-11-24
defendant a preliminary hearing be-
| fore q magistrate.

3. On an appeal taken from judg-
ment convicting defendant of keep
ing and maintaining common NUS
ance between two dates, the last of
which is date during the continu
ance of the term OF the district court
of the proper county, one Of the err
rors assigned is the overriding Of a
motion to set aside the information,
such appeal bringing into this court
none of the evidence, it must be as
sumed that the proof showed a main
tenance of the nuisance during the
continuance of the term of the dis
trict court at which the information
was filed.
4. Where a complaint was filed be-
fore a magistrate charging defendant
with the maintenance of common
nuisance, and he waived examination
and was held to the diTrict court,
and during the next term of the dis
trict court an information was filed
charging the offense of keeping and
maintaining common nuisance both
during the time included in the COM
plant filed with the magistrate and
a period subsequent to such time, in
Guiding that part Of the term of the
district court which had elapsed be-
fore the filing of the information, and
no separate information was filed for
the time covered by the complaint
made before the committing magis-
trate, a motion cannot be sustained to
set aside the information on the
ground that no complaint had been
filed or preliminary hearing had re-
lating to and covering the time not
included in the complaint on which
the defendant was held.
5. Conviction for maintaining
nuisance on an information charging
it's maintenance during long period
of time prior to the commencement
of term Of the court at which the
information was filed, and during such
term, is a bar to another conviction
for the commission of the same Of
Tense at any time between the dates
charged.
6. Had the information above re-
ferred to been drawn to cover only
the period subsequent to the prelim-
mary examination, it would not have
barred another conviction for It's
maintenance prior to such examina-
ton.
7. An information charging that
the defendant, between the LIST day
of July, 1909, and continuously there
from to and including the End day OF
May, 1910, committed the crime of
keeping and maintaining a common
nuisance in certain place and build
ing in the city of Mandan, properly
describing the place and building in
which place Intoxicating liquors were
sold, etc, as a beverage, and in which
said place persons were permitted to
and did resort ETC.. and in which said
place intoxicating liquors were kept
for SALE ETC., contrary to the statute,
etc, charges public offense notwlth-
standing the fact that it does not al
lege in terms that the defendant sold
or permitted persons to resort to
such place or kept intoxicating liq-
uors for sale thereat, the charge OF
keeping and maintaining being sufti-
cient to connect the defendant with
the offense.
(Sylabus by the court.)
Appeal from district court of Nor
ton county, Crawford, J.
Action by the state of North Da-
kota against Joseph Winbauer charg'
ing him with the offense of keeping
and maintaining a public nuisance.
From verdict and judgment of
conviction defendant appeals, assign
ing as errors the overriding of his
motion to set aside the information
and his demurrer to the information.
Affirmed.
Shaw & Nuchols, attorneys for ap-
pellant.
Andrew Miller, attorney general;
Alfred Zuger, G.. l.. Young, assistant
attorneys general and J. NJ. Hanley,
states attorney, attorneys for respon-
dent.
! Opinion of the court by Spalding,
j., all concurrng.
Lillian B. Taugher, plaintiff and re-
| spondent, VS.. Mort hern Pacific Rail-
way Co., a corporation, defendant
and appellant, and Edwin p. Olson,
Peter Kerner anu Edwin p. Olson,
| Daniel PresZler and Adam BOllin-
ger, defendants.
1. In an action for damages for
conversion OF grain Dy common car
rier, intrusted to it for transportation,
one of the defenses relied upon by
appellant was that the grain did not
belong to the plaintiff consignor, but |
was the property Of one c. In at
tempting to make proof Of such own
ership after proper foundation laid
and after C had testified thst the
grain all belonged to the plaintiff, c.
was Intercepted as to whether he
had made statements to the effect that
he owned the grain. Held, that such !
questions were proper as going to the !
credibility Of G. as a witnesses when !
offered for that purpose, and that 1t !
was reversible error of the trial court
to sustain objections to such ques-
tons.
2. On proof of delivery of property
to common carrier in sound con-
dition and of its failure to redeliver
it, a sufficient case is made to sustain
a recovery for loss in an action by
the shipper on his contract, with GER
tain exceptions which have no appll-
+, ~ Il